Miah Mohammad Juyel v. Torture Claims Appeal Board

HCAL 1827/2019

[2022] HKCFI 3575

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1827 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 39-year-old national of Bangladesh who entered Hong Kong illegally sometime in late May 2013 and was arrested by police on 9 June 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 a certain local supporter of the political party Awami League (“AL”) over a land dispute with his family in his home village and for refusing to his party, 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 Montoil, District Hobigonj, Bangladesh. After leaving school he worked in the farmland in his home village owned by his father, and supported the political party Bangladesh National Party (“BNP”) regularly attended their local meetings and activities including assisting in their promotion and recruitment of new members for the party.

3.In about 2008 a local AL representative Rahman informed the Applicant’s family that AL planned to build a road across his father’s farmland and demanded that they should give up the land to AL but without compensation, and when the Applicant’s family refused, Rahman left angrily and warned that there would be serious consequences.

4.Thereafter Rahman caused various disturbances and harassments to the Applicant’s family including false complaints to the police of wrongful occupation of the farmland by the family.

5.Rahman and his men had also at various times in 2011 confronted the Applicant on the street demanding him to join AL, and when he refused claiming to instead support BNP, they then made threats against him, and on one occasions Rahman struck him with a hockey stick that the Applicant lost consciousness and was subsequently taken to the hospital for medical treatments.

6.After the assault, the Applicant became fearful for his safety and in early 2012 fled to Dhaka to take shelter in a friend’s place, and on 17 May 2013 he departed Bangladesh for China, and from there he later sneaked into Hong Kong and 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 9 May 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 28 June 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”).

8.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 Rahman and his followers 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 of any real intention of them to seriously harm or kill the Applicant, that in any event it was a private land dispute between them and the Applicant’s family without 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 158 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 the country away from his home district in large cities such as Dhaka or Chittagong where it would be difficult if not impossible for Rahman or his men to locate him.

9.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 21 January 2019 before the Board during which he declined to give evidence or to answer any questions raised of his claim by the Adjudicator for the Board despite being advised to do so given the many issues over the credibility of various aspect of his claim as identified by the Adjudicator at the hearing. On 29 April 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found various inconsistencies and conflicts in the Applicant’s claim previously given to the Director and contained in the appeal bundle that seriously affected and undermined the credibility of his claim but which the Applicant refused to explain or clarify or to answer any questions raised thereof during the hearing of his appeal despite being advised to do so, or to discuss with the Adjudicator as to the availability of both state or police protection and reasonable internal relocation or why they would not in his case negate his claimed risk that it concluded that the Applicant’s claim as incredible and implausible and that he would not face any real risk of any of the proscribed harm from anyone upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.

11.On 2 July 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)  Procedural unfairness in the Board unlawfully fettering 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 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)  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 that resulted in its groundless speculation that it would be safe for the Applicant to return to his home country; and

(6)  Procedurally unfairness in providing the hearing bundle for the appeal to the Applicant just few days before the appeal hearing with the majority of the documents in English thereby giving him insufficient time to prepare for his appeal hearing especially due to his limited skills in English and being unrepresented that he was unable to fully understand what happened at his appeal hearing which was unfair to the Applicant.

12.These are however all just broad and vague assertions of the Applicant containing a few key words and phrases but without any particulars or specifics or elaborations as to how they applied 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 act in a unfair or unreasonable manner. Or what COI relied on by the Board were unofficially recognized or 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.

13.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.

14.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 given him insufficient time to prepare for his appeal.

15.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 SCF, record of his screening interview 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 from DLS, whilst his SCF was completed on his own instructions with legal assistance, and that at his oral hearing he was assisted by an interpreter and that he never raised any issue or requested the Adjudicator for further time to enable him to better prepare for his appeal. In the circumstances I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board, and that there is no merit in this complaint of the Applicant either.

16.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 32 – 42 of its decision and in view of his refusal to give any further evidence to explain or clarify numerous issues properly identified by the Adjudicator at the hearing or to answer any questions raised of his claim by the Adjudicator despite being advised to do so without any good reason, 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.

17.The fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if true 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.

18.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.

19.Furthermore, the Applicant recently on 27 September 2022 and 17 October 2022 wrote to request to withdraw his application as he no longer has any problem in his home country and that he now wants to return to Bangladesh.

20.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 in view of his latest confirmation that he now has no problem returning to his home country, I accordingly dismiss his leave application.

Dated the 25^th day of November 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