Fakir Md Murad Ali Alias Md Murad Ali Fakir v. Torture Claims Appeal Board and Another

HCAL 296/2019

[2023] HKCFI 488

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 296 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 42-year-old national of Bangladesh who entered Hong Kong illegally on 29 September 2015 and was arrested by police on 29 September 2015. 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 the local supporters of the political party Awami League (“AL”) as he supported their rival Bangladesh Nationalist Party (“BNP”) and refused to join AL He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Gopinathpur, District Gopalganj, Dhaka, Bangladesh. After leaving school he worked as a farmer in his home village, got married and raised a family with 2 children, and supported BNP regularly attended their local meetings and rallies, and putting up their banners and posters in the village.

3.In 2014 AL won the general election and became the ruling party, and some of their supporters in the Applicant’s home village started to harass and threaten other villagers into joining their party, and when the Applicant refused and insisted in supporting BNP, he was beaten by them with wooden sticks on 2 occasions, and when he reported the assaults to the local police, those AL supporters then made false charges against him of attacking them instead that the Applicant was detained for interrogation before he was eventually released without charge.

4.To avoid such further harassments and intimidations from those local AL supporters, the Applicant fled to Gazipur City where he stayed and worked as a plumber until June 2015 when he then moved to Dhaka City, but when he heard that those AL supporters were still looking for him everywhere, he therefore departed Bangladesh on 17 September 2015 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 8 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 25 October 2017 the Director of Immigration (“The 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”).

6.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 AL supporters upon his return to Bangladesh as low due to low intensity and frequency of past ill-treatment from them, that there is no evidence or reasons for them to specifically target him for harm given that he was just an ordinary BNP supporter without any official post in the party, that in any event in the absence of 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 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 the country away from his home district in large cities such as Chittagong or Dhaka City where he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him.

7.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 31 August 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 21 January 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted the Applicant’s claim of disputes and threats from those local AL supporters from his home village over his refusal to join their party but found no evidence or reason for them to specifically target him for harm given that he was just an ordinary BNP supporter with no official post in the party that state or 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.

9.On 1 February 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 immigration officer and the Adjudicator have no practical knowledge of the situation in Bangladesh in order to have a proper understanding of the risk of harm in the Applicant’s claim as to why he cannot return to his home country;

(2)  That the interpreter for the Applicant’s appeal hearing was not a good interpreter and did not give a proper and accurate interpretation of his claim to the Board;

(3)  That the Adjudicator asked the Applicant’s questions that were not related to his claim.

10.These are however just some vague and bare assertions of the Applicant without any details or particulars or elaboration as to how they apply to his case, or how did the interpreter fail to interpret his evidence or submissions properly or accurately, or what questions did the Adjudicator ask him that were not relevant to his claim, or what COI that the Director or the Adjudicator had relied on but which did not properly or accurately reflect the situations in his home country. None of these that the Applicant had provided with any details or elaboration to corroborate or substantiate, nor was he able to do so at the hearing of his application. As such I do not find any of these grounds of the Applicant reasonably arguable for his intended challenge, 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 merits in his intended application either.

11.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.

12.In the Applicant’s case, the Board rejected his claim essentially on its findings on the lack of reliable evidence or reason that the Applicant had been specifically targeted by those AL supporters and the availability of state protection available to negate the Applicant’s claimed risk for the thorough and detailed analysis and reasoning set out in paragraphs 16 – 29 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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.

13.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 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.

14.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.

15.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 3^rd April 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