Rashid Al Mamun v. Torture Claims Appeal Board

HCAL 2561/2019

[2022] HKCFI 2209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2561 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 46-year-old national of Bangladesh who last arrived in Hong Kong on 4 October 2005 as a visitor with permission to remain up to 18 October 2005 when he did not depart but instead overstayed, and was arrested by police on 2 November 2005. 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 certain local supporters of the political party Bangladesh Nationalist Party (“BNP”) as he supported their rival Awami League (“AL”), and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently being released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Tungipara, Gopalgonj, Bangladesh. During his school years he joined the student wing of AL, and after leaving school he ran a building material business in his home village, and continued to support AL regularly attended their local meetings and rallies.

3.In 2003 some local BNP supporters started to approach him with invitation to join their party but which he always refused. One day in February 2004 while he was on his way home, he was struck on the head from behind that he fell and lost consciousness, of which he later suspected was carried out by the BNP supporters to teach him a lesson.

4.On another occasion in August 2005 when he was attending a demonstration with his fellow AL supporters, they were attacked by a group of BNP supporters with sticks and rocks but the Applicant managed to make his escape with only minor injuries.

5.After the incident the Applicant became fearful for his life and fled to Dhaka, and on 25 August 2005 he departed Bangladesh for Hong Kong, and then he travelled to China before returning to Hong Kong on 4 October 2005 when he subsequently overstayed, and upon his arrest by the police, he raised his torture claim, and after it was rejected, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 20 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 22 December 2017 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 and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) 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 assessed the level of risk of harm from those local BNP supporters upon his return to Bangladesh as low 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 BNP people and that in any event whatever adverse interest they might have in him would have dissipated after all these years since he left the country, that AL have since become the ruling party 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 spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other area away from his home district in large cities where it would be difficult if not impossible for anyone to locate him.

8.On 4 January 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 29 May 2018 and 24 June 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 29 August 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 of being an AL supporter and had in the past come into conflicts with the local BNP supporters in his home village, but found no evidence that he had been specifically targeted by them or that there would still be any adverse interest in him after all these years since he left the country, and that in any event with AL now the ruling party that state/police protection would be available to the Applicant upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.

10.On 3 September 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 repeated his claim as before and complained that he was deprived of his right to legal representation for his appeal to the Board, and that he was not given sufficient time to prepare for his appeal hearing before the Board.

11.For his first complaint of not being provided with legal representation for his appeal to the Board, the Court of Appeal has already held that neither the high standard 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.

12.The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearings before the Board and to answer questions raised of his claim by the Adjudicator without difficulty. As such and in the premises, I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this complaint of his is reasonably arguable for his intended challenge.

13.As for his other complaint of not having sufficient time to prepare for his appeal hearing before the Board, the Applicant did not provide any details or elaboration as to how he was not given sufficient time to do so, in any event the fact is that he had attended 2 oral hearings before the Board during which he never raised any such issue, and that there were more than one year between those two hearings that there would have been more than sufficient time in between for him to prepare for his appeal that there is simply no merits in this complaint of his at all.

14.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the Applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.The fact is that it has also been correctly established by the Director in his decision 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, 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.

16.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.

17.Furthermore, the Applicant recently on 1 June 2022 filed an affirmation requesting to withdraw his application as it is now safe for him to return to his home country.

18.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 that it is safe for him to return to his home country, I accordingly dismiss his leave application.

Dated the 20^th day of July 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