Samad Mohammad Abdus v. Torture Claims Appeal Board

HCAL 2365/2018

[2022] HKCFI 492

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2365 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 the Applicant being absent 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 46-year-old national of Bangladesh who entered Hong Kong illegally on 29 November 2015 and later surrendered to the Immigration Department on 8 December 2015 when 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 Jamaat-e-Islami (“JIP”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Kushkhali, Satkhira, Bangladesh. After leaving school he worked as a teacher in his home village, got married and raised a family with 3 children, and supported JIP by regularly attending their local meetings and rallies.

3.After AL won the general election in 2008 and came into power, their local supporters frequently harassed and threatened the JIP supporters including the Applicant, and after one incident in 2010 when some of the AL supporters came to his home to threaten him and damaged his household contents, the Applicant fled to a neighboring village in Kushtia where he stayed for 3 years without incidents during which he resumed his support of JIP.

4.However, there were further confrontations between the supporters of the two parties during which the Applicant and his fellow JIP supporters were on two occasions attacked by AL supporters with weapons, and although the Applicant managed to escape unharmed, he felt it was no longer safe to remain in Bangladesh, and so in June 2015 he departed for India for a few days before returning to Dhaka, and on 18 November 2015 he again departed Bangladesh but this time for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 2 August 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 29 August 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 there will be any real and substantial risk of him being harmed or killed by those local AL supporters upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from them, that there was no evidence that he had been specifically targeted by the AL people in what were 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 adult with working experience 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.

7.On 7 September 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 1 June 2018 before the Board during which he gave evidence and answered questions raised of his claim 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 accepted the Applicant’s claim of clashes with the AL people while being involved in JIP but found no reliable evidence that he had been specifically targeted for harm in what were common conflicts between supporters of rival parties, that since 2015 when he ceased his political activities that there was no reason or evidence of any further adverse interest of the AL people in him, and that in any event in the absence of any official involvement that state/police protection would be available to the Applicant if needed as well as reasonable internal relocation for him to safely move to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

9.On 26 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and 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 requirement;

(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 decisions to refuse the Applicant’s appeal that they were unreasonable or irrational in the public law sense or are a 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) That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated which had resulted in making groundless speculations that it would be safe for the Applicant to return to his home country; and

(6) That the Applicant was given the hearing bindle just 6 days before his appeal hearing with the majority of the documents in the bundle in English that there was insufficient time for him to prepare for the hearing due to his limited skills in English and being unrepresented that it was not a fair hearing for the Applicant.  

10.The Applicant however failed to attend the hearing of his application without explanation, while his proposed grounds are all just broad and vague assertions of his containing a few key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or acted procedurally unfair or fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such are not reasonably arguable for his intended challenge, 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 application either.

11.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.

12.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 giving him insufficient time to prepare for his appeal.

13.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 decision should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the Adjudicator for further time to enable him to better prepare for his appeal. Accordingly, I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board either.

14.The fact is that it has been established by both the Director and the Board in their respective decisions 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

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 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