Islam Nazrul v. Torture Claims Appeal Board

HCAL 1369/2019

[2023] HKCFI 467

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1369 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 49-year-old national of Bangladesh who had since 1994 repeatedly entered Hong Kong illegally under various false identities before being arrested and repatriated back to Bangladesh again entered Hong Kong on 3 October 2006 under his current claimed identity and overstayed since 11 October 2006, and after some 9 years later on 7 October 2015 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by a local landowner in his home village over a land dispute with his family and/or 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 some false charges brought by those AL supporters against him that he also feared of becoming a victim of extra-judicial killings by the Bangladeshi authorities.

2.The Applicant was born in 1973 and raised in Town West in Ashwodia, Sadar, Noakhali District, Bangladesh where he claimed to have jointly owned with his parents in 1982 a farmland in his home village but which was coveted by a local greedy landowner who tried to forcibly occupy their land by making threats against them, and on one occasion in 1984 when the Applicant was working on his farmland, the landowner and his followers came and assaulted him by chopping him on his leg until his neighbours intervened, and before they left the landowner warned the Applicant that he and his parents would be killed if they continued to resist his claim over the land.

3.Thereafter the Applicant was afraid to report the matter to the police, but the threats persisted and eventually the landowner was able to take over the land without any further resistance from the Applicant’s family.

4.In 1985 or 1986 the Applicant became the local president of BNP and became involved in some NGO business helping the local villagers during which he and his fellow party members were accused by the AL people of embezzling donations which led to investigation by the police that caused the Applicant great stress and fear, and after a violent confrontation occurred between supporters of the 2 rival parties resulting in some of them being shot and killed and with heavy casualties, and although the Applicant did not participate in the clash, he was subsequently accused by the AL supporters of instigating the bloodshed, and when the police started looking into the accusation, the Applicant fled to Dhaka where he stayed for the next 8 years without incidents to run some garment manufacturing business until 1994 when he made the first of his many trips to Hong Kong under various false identities.

5.During his last trip to Hong Kong in 2006, the Applicant heard that those AL people and the police were still looking for him everywhere that he was afraid to return to Bangladesh, and so he went into hiding in Hong Kong until some 9 years later when he surrendered to the Immigration Department and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 17 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 21 December 2016 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”).

7.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 personal risk of him being harmed or killed by his perceived enemies upon his return to Bangladesh as it is not accepted that there would still be any adverse interest of those local AL people in him over some political disputes that occurred more than 30 years ago in the mid-1980s, that the same doubt also arose over his alleged land dispute between the landowner and his family in his home village when the landowner had since already seized his family’s land and that nothing had since happened to his family over the past 30 years that there is simply no evidence or reason that there would still be any risk of harm to the Applicant after all these years, while there is also no evidence of any adverse interest from the Bangladeshi police or authorities over any false charges allegedly brought by those AL people against him more than 30 years ago other than his own bare assertion when the fact that he had never once been arrested or detained by the authorities during his many departure from the country and his repatriations from Hong Kong that it is not credible or accepted that there is any substance in such claimed fear of the Applicant of any possible arrest or prosecution by the Bangladeshi police let alone any risk of extra-judicial killings upon his return to Bangladesh, that in any event in the absence of any official involvement in his alleged private disputes with the local AL people or the landowner 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 168 million people 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 part of the country away from his home district in large cities such as Dhaka where he had lived for years without incidents and where it would be difficult if not impossible for any of his perceived enemies to locate him.

8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 12 March 2019 and 1 April 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 17 May 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found even on the factual basis of the Applicant’s own case at the highest that all his alleged incidents or disputes with the AL people or the landowner or false charges brought against him had occurred in the early or mid-1980s when he was in fact only in his early teens at aged 12 or 13 as admitted by him during his oral hearings before the Adjudicator that it concluded that he was not a reliable witness and that it is not acceptable or plausible that at such a young age that he could have been involved in politics let alone to become the local leader of BNP or to be involved in any disputes with the AL people or to legally own any farmland at his age and then to get involved in any land dispute with the landowner in his home village or to have been investigated by the police over any false charges in the absence of any credible or reliable evidence to corroborate any of his bare assertions, and the fact that he had been in and out of his country many times over the past 20 years without any problem with the authorities and was even issued a passport in his true identity by the authorities that the Board concluded that he had fabricated his entire claim for non-refoulement protection that it was rejected on all the applicable grounds.

10.On 21 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in both his Form and his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  Procedural unfairness in unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  Procedural unfairness in that the board 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 failing to meet the greater care and duty owed to a self-represented claimant;

(5)  That the Board had relied on source of news not officially recognized or were just hearsay or outdated that resulted in it making groundless speculations that it would be safe for the Applicant to return to his home country; and

(6)  That the Board failed to give the Applicant an opportunity to put forward his submissions at the oral hearing or to invite him to put in written submissions in support of his claim which is not fair or reasonable.

11.These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or how did the Board unlawfully fettered its discretion or acted in a procedurally unfair manner, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI or which of them were unofficially recognized or were hearsay or outdated, or in what way was the Applicant not given any opportunity to present his submissions when according to the records that he had in fact participated in 2 oral hearings and was on both occasions given every opportunity to fully present his case to the Board. As such and as none of these assertions were elaborated or presented with any relevant or valid particulars or specifics by the Applicant in his affirmation or at the hearing of his application when he could only repeat his claim as before, I do not find any of his proposed grounds reasonably arguable for his intended challenge.

12.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.

13.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 67 – 76 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim in not just one but two hearings over some events which were said to have occurred more than 30 years ago when he was just a boy and of which the Board was perfectly entitled in the absence of any reliable evidence to entirely reject his claim based solely on his bare assertions, and that 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.

14.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 which even if true are localized ones 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.

15.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.

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

Dated the 20^th day of February 2023.

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