Ujjal Mohammad v. Torture Claims Appeal Board

HCAL 2068/2018

[2022] HKCFI 497

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2068 of 2018

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 28-year-old national of Bangladesh who entered Hong Kong illegally on 3 February 2016 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 the local supporters of the political party Awami League (“AL”) as he supported their rival Bangladesh Nationalist Party (“BNP”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Mirpur, Dhaka, Bangladesh where he followed his father’s tradition to support BNP by regularly attending their local meetings and rallies, but one day in January 2015 while holding a local rally with his fellow BNP supporters, they were confronted by some AL supporters and were prevented from proceeding with their rally, and in protest the Applicant and his fellow BNP supporters shut down all the shops and restaurants in the market by threatening to vandalize them if they failed to do so.

3.Several weeks later a group of AL supporters stormed into BNP’s local office and attacked the BNP supporters inside including the Applicant by punching and kicking them that the Applicant suffered cuts and bruises all over his body.

4.After the incident the Applicant fled to his grandfather’s place in District Munshiganj where he stayed for several months before returning to his home village, but one day in September of the same year a group of AL supporters with weapons came to his parents’ home looking for the Applicant who then escaped from the back window and fled to District Narayanganj before moving on to Dhaka, and on 26 January 2016 he departed Bangladesh 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 16 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 10 July 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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 found no substantial grounds for believing that he will face any personal, real and foreseeable risk of his feared harm upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from those local AL supporters, that there is no evidence that he had been specifically targeted by the AL people in such common conflicts between supporters of rival political parties, 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 156 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 young adult to move to other part of Bangladesh away from his home district in large cities such as Dhaka where it would be difficult if not impossible for him to be located.

7.On 19 July 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 6 October 2017 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 24 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found various significant inconsistencies and discrepancies in the Applicant’s evidence as to his claim coupled with his attempt to introduce significant new claims at the hearing without persuasive explanation for their omissions in his claim before the Director that it rejected the credibility of his claim, and concluded that he had manufactured the core elements of his claim that it did not accept his claim of any fear of the proscribed harm upon his return to his home country that his claim for non-refoulement protection failed on all the applicable grounds.    

9.On 28 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forth the following grounds for his intended challenge:

(1) that the Board erred in failing to maintain high standard of fairness by not holding an oral hearing to allow the Applicant an opportunity to present his case;

(2) that the Board failed to apply minimum standard of procedural fairness in assessing his claim; and

(3) that the Board failed to take into account that the Applicant was not legally represented and that he has insufficient legal knowledge which could jeopardize his representation in his appeal process but which the Adjudicator never advised him that he could complain.  

10.The first complain of the Applicant of not being provided with any oral hearing for his appeal before the Board is clearly incorrect and without any factual or evidential basis, as he did appear before the Board on 6 October 2017 during which he was able to make proper representations including giving further oral evidence and answering questions raised of his claim by the Adjudicator as clearly recorded in the Board’s decision that there is simply no basis at all for this complaint of the Applicant. 

11.As for his complaint under Ground (2), it is just some broad and vague assertion without any particulars or elaborations as to how the Board failed to apply judicial fairness in assessing his claim, and if the Applicant were to refer to the lack of oral hearing for his appeal, it is as already noted above simply factually incorrect and not arguable at all.

12.As for his complaint under Ground (3) of not being provided with legal representation for his appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration, HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; and Re Zafar Muazam [2018] HKCA 176.

13.The Applicant already had the benefit of legal representation from DLS in presenting his case to the Director, and was able to make his representation to the Board including giving oral evidence and answering questions raised of his claim with the assistance of an interpreter and without any difficulty. Even now in his application before me that he had not advanced any further argument or evidence which he might not have been able to do so before the Board due to lack of legal representation. As such and in the absence of any evidence from him that the basis of his claim had indeed been wrongly interpreted or understood by the Board arising from his lack of legal representation, I find this complaint of the Applicant simply speculative and without any evidential basis.    

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.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning as set out in 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.  

16.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if true 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.

17.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.

18.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 16^th day of February 2022.

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