Bepari Mohammad Masud v. Torture Claims Appeal Board and Another

HCAL 61/2019

[2022] HKCFI 3541

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 61 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 the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 43-year-old national of Bangladesh who entered Hong Kong illegally on 24 September 2015 and was arrested by police on the following 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 certain local supporters of the political party Awami League (“AL”) for refusing to pay them extortion money. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Delduar, Bapari Para, District Tangail, Bangladesh. After leaving school he worked as a farmer, got married and raised a family with a daughter in his home village.

3.In 2010 he started to run a store selling cooking pots and pans in his home nighbourhood, but in about early 2011 some local AL supporters started to come to his store demanding for protection money, and when he refused to pay, they then beat him with hockey sticks and other weapons, and threatened to kill him next time if he still refused to pay them money.

4.Thereafter the Applicant went to the local police station for help, but when the police failed to carry out any investigation or arrest those AL supporters, and when they later returned with their demands, the Applicant had no choice but to pay them with whatever he could afford from his business income.

5.However, by February 2014 when his business could no longer spare any money for him to pay those AL supporters, they beat him again but more violently by chopping him on his left thigh with a chopper that he was subsequently taken to a local hospital for treatments.

6.Upon his discharge from the hospital, the Applicant stayed at home to recuperate and closed his store for several months, but when those AL supporters kept coming to him for money, he left Bangladesh in January 2015 for sight-seeing in Thailand for more than one week before returning to Bangladesh, but as he still feared of further attacks by those AL supporters, he departed Bangladesh on 24 August 2015 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 23 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 21 December 2017 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”).

8.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 there will be any real and substantial risk of him being harmed or killed by those local AL supporters upon his return to Bangladesh given the fact that he had since closed his business and having left the country all these years that it is not accepted that there would still be any adverse interest in him, that in any event it was a criminal act of those local AL supporters to extort money from him 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 157 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 the country away from his home district in large cities such as Dhaka where it would be difficult if not impossible for those local AL supporters to locate him.

9.On 2 January 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 19 November 2018 before the Board during which he declined to give evidence or to answer questions raised of his claim despite explanation and invitation by the Adjudicator for him to do so to establish his claim before the Board. On 17 December 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found numerous matters in the Applicant’s claim which lacked sufficient details and which required explanation and clarification from him at his appeal hearing, but notwithstanding explanation from the Adjudicator of the importance and necessity for him to establish his claim to the satisfaction of the Board and despite the advice and invitation by the Adjudicator for him to at least answer questions raised of his claim but that the Applicant instead elected not to do so without any good explanation that the Board concluded that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.

11.On 8 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That the Applicant does not know English but the hearing bundle for his appeal was provided to him late without giving him enough time to prepare for his appeal before the Board;

(2)  That the interpreter for his appeal hearing was not competent and did not translate his representation to the Board properly or completely; and

(3)  That the immigration officer asked him rubbish questions which were not important but did not ask him about his ‘problem’ in Bangladesh.

12.These are however all just broad and vague assertions of the Applicant without any particulars or specifics or elaborations as to how they would apply to his case or how the Board or the Adjudicator had erred in the decision, while it is also clear from the Board’s record of the hearing and its decision that the Applicant never raised any such issue over his hearing bundle or the competency of the interpreter during his appeal hearing before the Board, nor did he ever request for further time to prepare for his appeal. In fact, despite explanation and invitation of the Adjudicator, the Applicant as noted above did not give any evidence or make any representation or answer any questions during his oral hearing before the Board. As such I do not find any of his grounds reasonably arguable, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis 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.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 59 – 65 of its decision including those matters in his claim which the Board had listed in paragraphs 62[a] – [p] as lacking details and with explanations as to why they could not be accepted as sufficient to discharge his burden to prove and establish his claim to the Board’s satisfaction when the Applicant instead declined to do so without any proper explanation. As such 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.

15.Furthermore, 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.

16.In the premises and 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.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse 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