Kalam Abul v. Torture Claims Appeal Board

HCAL 410/2019

[2021] HKCFI 3478

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 410 of 2019

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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:

1.  the application for leave to apply for Judicial Review be reinstated; and

2.  leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 29-year-old national of Bangladesh who entered Hong Kong illegally on 30 May 2014 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by his neighbors who tried to steal his family’s land in his home village.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Gobindopur, Feni, Bangladesh where his next door neighbor was the local leader of the political party Awami League (“AL”) and his 5 sons were also keen supporters of the party.

3.One day in late 2009 his neighbors came onto his family’s land in the village and tried to build a fence on it, and when the Applicant confronted them, they beat him with kicks and punches until he fled from the scene, and when he was unable to get any help from the police or the village head, and when his neighbors continued to harass and make threats against him including threatening to burn down his house, the Applicant fled from his home village in 2010 to take shelter in his grandfather’s place in Dhaka, but when those threats from his neighbors persisted, the Applicant felt it was no longer safe to remain in Bangladesh, and so on 23 May 2014 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 7 March 2016 the Director of Immigration (“The 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”).

5.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 his neighbors upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that his problem with them was a private land dispute without 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 168 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult to move to other part of Bangladesh away from his home district in large cities such as Dhaka where he had stayed before without incidents and where it would be difficult if not impossible for him to be located.

6.By a Notice of Further Decision dated 15 June 2017 the Director, upon finding that the Applicant had also failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2 Risk”) being violated upon his return to Bangladesh, accordingly also dismissed his BOR 2 claim.

7.By then the Applicant was in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 17 March 2016, and for which he attended an oral hearing on 29 June 2018 together with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer to the Board.  On 18 January 2019 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.In its decision the Board found significant inconsistencies and inherent implausibility in the Applicant’s evidence as to his claim of threats from his neighbors arising from their dispute over his family’s land that it rejected the credibility of his claim, and that in any event that the core of his case arose from a personal and private land dispute which had no element of political rivalry behind the dispute that it is not satisfied that there is any real risk of the Applicant being subject to any risk of ill-treatment of any sort upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.

9.On 13 February 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his Form and supporting affirmation he put forth the following grounds for his intended challenge:

(1)   Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2)   Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)   Procedural unfairness in the Board’s decision to refuse the Applicant’s appeal which was unfair and unreasonable in the public law sense or the result of procedural errors or unfairness;

(4)   Procedural unfairness in the Board’s failure to meet the greater care and duty owed to a self-represented claimant;

(5)   The Applicant was not given the opportunity to put forward his submissions in an oral hearing nor was he invited to submit written submissions for his appeal before the Board;

(6)   The Board significantly relied on the source of news which is not officially recognized or is simply hearsay or which is fairly outdated with the lack of credible source of information resulted in the Board making groundless speculations that it was safe for the Applicant to return to his country of origin; and

(7)   That the Applicant was given the hearing bundle just 6 days before the appeal hearing with the majority of the documents in English including the Director’s written submission that there was insufficient time for the Applicant to prepare for his appeal due to his limited skills in English and being unrepresented that it was procedurally unfair to the Applicant.  

10.However, before his application could be dealt with by the Court, the Applicant on 17 May 2021 filed an affirmation requesting to withdraw his application as his problem is “now finished” and that he wanted to go back to his home country.  Accordingly his request was granted on 24 May 2021 and his leave application was allowed to be withdrawn.

11.Some 3 months later on 6 September 2021 the Applicant issued a summons requesting to restore his leave application for hearing, and at the hearing he explained that back in May 2021 he received news that his mother had fallen seriously ill and hence he wanted to return to Bangladesh to be by her side, and so he was advised by his immigration officer to withdraw his leave application first with an excuse that his problem had been resolved before he could be sent home, and accordingly he made his withdrawal application, but while he was waiting for his flight home, he received news in September 2021 that his mother had recovered from her serious illness, and so he changed his mind about returning home and instead he wants to proceed with his leave application.

12.Given the fact that the substance and merits of his leave application have never been determined, and in giving the Applicant the benefit of the doubt, I accepted his explanation and allowed him to re-instate his leave application, and proceeded to consider his proposed grounds for his intended challenge of the Board’s decision.

13.However, those grounds as stated above are all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unreasonable or irrational in the public law sense, or how did the Adjudicator act procedurally unfair or fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or in what way was the Applicant not given the opportunity to put forward his submissions at his appeal hearing before the Board when he was in fact legally represented by his lawyer from DLS, and as none of these assertions were elaborated or presented with any particulars or specifics by the Applicant, I am not satisfied that any of these grounds are reasonably arguable for his intended challenge.

14.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.

15.The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

16.Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to him when he had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and as he was still legally represented by his lawyer from DLS at his appeal hearing during which neither he nor his lawyer had raised any issue or requested the Adjudicator for further time to enable him to better prepare for his appeal.  In the circumstances I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board, and that this ground is also not reasonably arguable either.

17.Essentially his claim was rejected by the Board on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 76 – 87 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.  

18.Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526. 

19.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.

20.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 18^th day of November 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