Imran Mohammad v. Torture Claims Appeal Board

HCAL 2127/2019

[2022] HKCFI 1584

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2127 of 2019

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 31-year-old national of Bangladesh who entered Hong Kong illegally on 20 August 2012 and was arrested by police on 19 January 2013. After he was referred to the Immigration Department for investigation, he raised a torture 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”) and/or by the police over a false murder charge made by those AL people against him. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Goganiya, District Munshigonj, Bangladesh. After leaving school he started to support BNP by regularly attended their local meetings and rallies.

3.One day in March 2012 he attended a arbitration meeting held in his home village between the AL and BNP people over certain dispute which deteriorated into a mass brawl between the two parties when their supporters fought with each other with sticks and other weapons until the police arrived to disperse the people, and thereafter the Applicant just fled home.

4.However, on the following day the Applicant heard that one of the AL supporters had died from his injuries received during the fight, and that the AL people had made a murder charge against the BNP supporters including the Applicant that they were summonsed to later appear in court, but which the Applicant did not do so and instead he fled to Dhaka to take shelter in his uncle’s place, and on 14 July 2012 he departed Bangladesh for China, and from there he later sneaked into Hong Kong, and after his arrest by the police he raised his torture claim with the Immigration Department, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 11 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 4 December 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 assessed the level of risk of harm from the local AL supporters or the police upon his return to Bangladesh as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence that the Applicant had been specifically targeted by the AL people or that he was wanted by the police or the authorities and that he was able to leave the country without any problem, that if he was indeed being pursued by the police through proper legal process that he would not be entitled to non-refoulement protection, 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 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 it would be difficult if not impossible for him to be located.

7.On 13 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 6 June 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 4 July 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from the local AL supporters or the police that caused him to leave his country for Hong Kong which had further been undermined by his failure to raise his claim first upon his arrival until months later and after his arrest by the police, that in any event there was no evidence of him being specifically targeted by the AL people or being pursued by the police that there would be any risk of him being harmed upon his return to Bangladesh, that in the absence of any official involvement that state/police protection would be available to him if needed as well as reasonable internal relocation for him to move safely to other part of the country away from his home district to large cities without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

9.On 25 July 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that he did not get good interpretation from the interpreter provided for his appeal hearing before the Board but without providing any details or particulars in support of his bare assertion, nor is it shown anywhere in the Board’s decision of any issues which he might have or had raised with the interpreter or the quality of interpretation before the Adjudicator during his appeal before the Board that I do not find any merits in this complaint of his or that it is reasonably arguable for his intended challenge. 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.

10.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.

11.In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decision that the risk of harm in his 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.

12.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.

13.Furthermore, the Applicant recently on 5 May 2022 filed an affirmation requesting to withdraw his application as he has no further problem in his home country and that he wants to go home.

14.In the premises, I am for the reasons given 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 there is no further problem for him to return to his home country, I accordingly dismiss his leave application.

Dated the 27^th day of May 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