Shafi Abdul v. Torture Claims Appeal Board

HCAL 1952/2018

[2021] HKCFI 3217

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1952 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 48-year-old national of Bangladesh last arrived in Hong Kong on 25 December 2005 with a passport under a different identity with permission to remain as a visitor up to 8 January 2006 when he did not depart and instead overstayed and was arrested by police on 23 November 2007.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by certain local leader of the political party Bangladesh Nationalist Party (“BNP”) as he supported their rival Jatiya Party (“JP”) and/or by the police due to some false charges made by that BNP leader against him. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Ganga Chara, Rangpur, Bangladesh. After leaving school he assisted a friend in his trading business, and supported JP regularly attended their local meetings and rallies.

3.One day in March 2003 he together with his fellow JP supporters attended a political possession in his home district during which they were attacked by BNP supporters with hockey sticks and other weapons and which led to a mass brawl resulted in many injuries on both sides, and later when two BNP members died from their injuries, the local BNP leader made false accusations to the police against the Applicant and his fellow JP supporters, and so the Applicant fled to Chittagong and Dhaka where he took shelter in a friend’s place, and later assisted his friend in his trading business by taking frequent business trips to Hong Kong and China to import goods to Bangladesh,  but during one such trip to Hong Kong in July 2005, he was arrested by police for undertaking unauthorized employment and was repatriated to Bangladesh in September 2005.

4.Upon returning to his home district in Bangladesh, the Applicant learnt that the local BNP leader had made another false charge against him, and so on 25 December 2005 he used the passport under another identity to depart Bangladesh for Hong Kong where he overstayed, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 17 March 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 11 June 2014 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the local BNP leader upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from him, that there is no reliable evidence that he had been specifically targeted by the BNP or the police given that he had made many trips in and out of the country without any problem, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 166 million people spread across a vast territory of more than 143,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Bangladesh away from his home district in large cities without any risk of being located.

7.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and after attending an oral hearing on 29 August 2014 his appeal was dismissed by the Board on 7 November 2014 upon rejecting the credibility of his claim and also confirmed the Director’s decision.

8.On 12 November 2014 the Applicant filed his Form 86 under HCAL 153/2014 for leave to apply for judicial review of the Board’s decision, which was refused on 2 July 2015 by P Li J upon finding there was no error of law or procedural unfairness in the appeal process before the Board or in its decision, that none of the Applicant’s proposed grounds were reasonably arguable for his intended challenge, and that there was no prospect of success in his intended application. The Applicant never brought any appeal against that decision.  

9.Meanwhile on 28 October 2016 the Director on his own initiative invited the Applicant to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2 Risk”), and upon receiving and considering the same from the Applicant, the Director by a Notice of Further Decision dated 14 December 2016 rejected his BOR 2 claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Bangladesh.

10.On 23 December 2016 the Applicant again lodged an appeal to the Board against the further decision of the Director, and for which he attended another oral hearing on 27 March 2018 before the Board during which he gave further evidence and answered questions raised of his claim by the same Adjudicator as before for the Board.  On 6 September 2018 his appeal was again dismissed by the Board which also confirmed the further decision of the Director.

11.In its decision the Board found that there was nothing in the additional evidence and information adduced by the Applicant that would give any ground for taking a different view as to the credibility of his claim as found in the Board’s previous decision, that the Applicant was again found to have not given any honest account of the provenance of any of the additional documents submitted by him and to which the Board was unable to attach any weight, and concluded that that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including his right to life under BOR 2 being violated if refouled to Bangladesh.      

12.On 17 September 2018 the Applicant again filed a Form 86 in these proceedings for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form or in his supporting affirmation, and at the hearing of his application he just repeated his claim as before, and that he still has problem in his home country that he wants to remain in Hong Kong.  As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.  

13.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14.In the Applicant’s case, the Board again rejected his claim essentially on its adverse finding on his credibility as in the previous decision for the thorough and detailed analysis and reasoning set out in paragraphs 16 – 23 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.        

15.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 28^th day of October 2021.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1