Abdus Sattar v. Torture Claims Appeal Board

HCAL 1440/2019

[2022] HKCFI 1867

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1440 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 40-year-old national of Bangladesh who entered Hong Kong illegally on 11 May 2008 and was arrested by police on 22 May 2008. 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 his paternal uncle over the land dispute between his uncle and his father in their home village, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Gobindapur, Hajir Bazaar, Feni, Bangladesh where his father and uncle had inherited from his grandfather land adjacent to each other in the village, but in 2007 when his uncle built a house on his own land but which had extended over to his father’s land, and when his father raised issue over the matter, it led to heated dispute between them that on one occasion both the Applicant and his father were attacked by some unknown men whom the Applicant suspected were sent by his uncle to teach them a lesson over their land dispute.

3.After the assault the Applicant became fearful for his life, and fled from his home for Dhaka, but given his uncle’s political connections, he felt it was not safe to remain in Bangladesh, and so on 14 September 2007 he departed for China, and from there he later sneaked into Hong Kong and raised his torture claim, and after it was rejected by the Immigration Department, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 30 August 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 8 October 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”).

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 uncle upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from his uncle, that there is no evidence of any real intention of his uncle to seriously harm or kill the Applicant given that his uncle’s dispute was essentially with his father who was the legal land owner but who had been able to live safely in his home village without any further incidents with his uncle all the years since the Applicant left the country, that in any event it was a private family dispute without any official involvement that state or police protection would be available to the Applicant if resorted to upon his return to Bangladesh, 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 157 million people spread across a vast territory of more than 130,000 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 Khulna where it would be difficult if not impossible for his uncle to locate him.

6.On 18 October 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 11 April 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 23 May 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board accepted the Applicant’s evidence as to the land dispute between his father and his uncle in his home village but found no evidence of any real intention of his uncle to seriously harm or kill the Applicant which was based entirely on the Applicant’s own speculation and that his father had been able to live safely in his home village without further incidents since the Applicant left the country many years ago that it is not accepted that the Applicant would still face any risk of harm from his uncle after all these years, and that in any event it was a private land dispute between his father and his uncle within the family without any state or official involvement that state/police protection would be available to the Applicant if needed 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.

8.On 27 May 2019 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 just repeated his claim as before and complained of not being provided a good translator or interpreter to assist him as he cannot read English and that the Adjudicator did not fully or properly understand his claim because the interpreter totally failed to translate his evidence and submissions during his appeal hearing before the Board but without any details or particulars as to how the interpreter failed to do so.

9.It is clear from the record that the Applicant was assisted by an interpreter at his appeal hearing before the Board during which he was able to give evidence and answer questions raised of his claim by the Adjudicator for the Board without problem, nor did he raise any issue with the interpretation throughout the entire hearing. As such and in the absence of any suggestion from the Applicant as to which particular part of his claim that the Board might have misunderstood or failed to properly understand which was on the factual basis of his own case at the highest just a private family land dispute without any state or official involvement as correctly established by both the Director and the Board, I do not find any merits in this complaint of the Applicant, 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, nor do I find any reasonably arguable basis for his intended challenge either.

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 10 May 2022 filed an affirmation requesting to withdraw his application as he wants to return to his home country as soon as possible.

14.In the premises, as 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 given his latest confirmation of his wish to return to his home country as soon as possible, I accordingly dismiss his leave application.

Dated the 21^st day of June 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