Islam Rafiqul v. Torture Claims Appeal Board

HCAL 1701/2019

[2022] HKCFI 864

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1701 OF 2019

NApplication 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 / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review dismissed.

Observations for the Applicant:

1.The Applicant is a 42-year-old national of Bangladesh who entered Hong Kong illegally on 8 October 2015 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 Village Arappur, West Para, Jhenaidah, Bangladesh. After leaving school, he worked in his father’s garment shop, and supported BNP regularly by attending their local meetings and rallies, during which he was frequently approached by the local AL supporters to join their party but he always refused.

3.One day in late 2013 he was confronted by a group of AL supporters who warned him that there would be violent consequences if he still persisted in his refusal to join AL, and shortly thereafter he was attacked by those AL supporters with wooden sticks that he suffered cuts and bruises all over his body. 

4.On another occasion in January 2015 during a local demonstration organized by BNP, the Applicant and his fellow BNP supporters were attacked by the AL people with knives and sticks during which the Applicant was stabbed in his right knee that he collapsed and lost consciousness, and was subsequently taken to the hospital where he was hospitalized for a week.

5.Shortly after his discharge from hospital and return to his home for recuperation, the Applicant noticed that a group of AL supporters had come looking for him, and so he escaped from the back door to hide in a friend’s place before fleeing to Dhaka, and on 5 October 2015 he departed Bangladesh for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 26 November 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 7 December 2018 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”).

7.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 would be in danger of 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 is no evidence that he had been specifically targeted by the AL people and that any adverse interest they might have in him would have dissipated all these years since he left the country, 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 159 million people spread across a vast territory of more than 140,000 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 Comilla or Khulna where it would be difficult if not impossible for those local AL people to locate him.

8.On 20 December 2018 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 26 March 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 5 June 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board accepted the Applicant’s evidence as to his political involvement and activities as a BNP supporter during which he had come across violent conflicts with the local AL supporters but found no evidence or reason that he had been specifically targeted for harm by the AL people as he did not have any political profile that would give rise to any real chance of harm or death from rival political parties, and that in any event in the absence of any official involvement that state/police protection would be available to him upon his return to Bangladesh as well as reasonable internal relocation for him to move safely 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.   

10.On 20 June 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)   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)   That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)   That the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)   That the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)   That the Board significantly relied on source of news that were not officially recognized or were simply hearsay or outdated resulted in the Board making groundless speculations that it would be safe for the Applicant to return to his home country; and

(6)   That the hearing bundle was given to the Applicant just a few days before his appeal hearing with the majority of the documents in English thereby giving him insufficient time to prepare for his hearing especially due to his limited skills in English and being legally unrepresented which was procedurally unfair to him.  

11.These are however all just broad and vague assertions of the Applicant containing several pages of 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 how did the Board unlawfully fetter its discretion or act in a procedurally unfair manner in dealing with his appeal, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or which COI were not officially recognized or were hearsay or outdated.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

12.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.

13.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.

14.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, nor do I find this ground reasonably arguable either.

15.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on the credibility of any real risk of harm to him upon his return to his home country for the thorough and detailed analysis and reasoning set out in paragraphs 19 - 55 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.  

16.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 which if true 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.

17.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.Furthermore, the Applicant recently on 24 February 2022 filed an affirmation requesting to withdraw his application because he has no problem in his home country that he wants to return to Bangladesh.

19.In the premises, and as I am for the reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that he no longer has any problem returning to his home country, I accordingly dismiss his leave application.

Dated the 24^th day of March 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