Sujon Mohammad Asaduzzaman v. Torture Claims Appeal Board

HCAL 3280/2019

[2023] HKCFI 1302

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 3280 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 / 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 40-year-old national of Bangladesh who entered Hong Kong illegally on 27 June 2013 and was arrested by police on 3 July 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 certain local supporters of the political party Awami League (“AL”) as he supported their rival Jamaat-e-Islami (“JEI”) and was involved in a fight with them which led to the death of one of their members and/or by the family of the victim for revenge and/or by the police for being involved in the fight, 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 Narankara, District Comilla, Bangladesh. After leaving school he assisted his father in his farming on some farmland in their home village, and supported JEI regularly attended their local meetings and activities without holding any official post in the party.

3.However, after AL came into power in 2009 and became the ruling party, some of their supporters in the Applicant’s home village started to harass and threaten the BNP supporters including the Applicant, and on some occasions even violently assaulted them, and to avoid such harassments, the Applicant left Bangladesh to work in Dubai until June 2012 when he returned to his home village to be at the side of his ailing father.

4.Thereafter the Applicant resumed his support for JEI but whenever he ran into those AL supporters, the Applicant would still be threatened and harassed by them, and one day in April 2013 the Applicant and his friends were confronted by those AL supporters near a cricket ground which turned into a mass brawl when they attacked each other with cricket bats and other weapons, during which the Applicant suffered cut and bruises all over his body but managed to flee from the scene to hide in his grandparents’ home in Batisha.

5.On the following day the Applicant heard that one of those AL supporters was seriously injured in the fight and subsequently died in the hospital, and that the other AL supporters as well as the victim’s family were looking to kill the Applicant and his friends in revenge, and that they had also made some false charges against him and his friends to the police who were investigating the matter and were also looking for them.

6.Fearing for his safety, the Applicant therefore fled to Dhaka, and on 20 May 2013 he departed Bangladesh for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised a torture claim, and after it was rejected by the Immigration department, he then sought non-refoulement protection on the same basis, for which he completed a Supplementary Claim Form (“SCF”) on 30 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 11 September 2018 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 assessed the level of risk of harm from those local AL supporters or the victim’s family or the police upon his return to Bangladesh as low due to the absence of or low intensity and frequency of past ill-treatments from them, that there was no evidence of any real intention of those AL supporters to seriously harm or kill the Applicant other to harass him as was common between supporters of rival political parties in Bangladesh, that there is no reliable evidence that the police were after the Applicant as he was able to leave the country without any difficulty, that even if the police were indeed looking for the Applicant that they were merely doing their job to investigate the incident that it is not accepted that the Applicant would be at risk of any harm from them, that 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 158 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 it would be difficult if not impossible for those local AL supporters or the victim’s family to locate him.

9.On 24 September 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 31 July 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 29 October 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board accepted the Applicant’s evidence of being subjected to threats and harassments by AL supporters prior to his departure of Bangladesh but found no evidence of any adverse interest of the police in him or that he is being pursued by them over the death occurred during their fight in the cricket match given that he was able to leave the country with his passport without any difficulty, that in any event if indeed the police were looking for him that it was lawful procedure for investigating the incident and that according to relevant COI even if the Applicant is to be arrested and prosecuted that under the current legal system in Bangladesh that there is nothing to suggest that he would not be able to properly defend such charges with legal representation in a fair trial, and that whatever risk of harm from those AL supporters or the victim’s family that he may face upon his return to Bangladesh would be negated by state/police protection available to him as well as reasonable internal relocation for him to move safely to other part of the country without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

11.On 4 November 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his Form and supporting affirmation he put forth various grounds for his intended challenge which can be summarized as follows:

(1)  Procedural unfairness in that the Board had 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 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 that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  That the Board had significantly relied on sources of news not officially recognized or were simply hearsays or outdated which resulted in its groundless speculations that it would be safe for the Applicant to return to his home country;

(6)  That the Board reached the wrong decision in assessing the Applicant’s claim without any proper inquiry or careful understanding of his dangerous situation in his home country;

(7)  That it is procedurally unfair that the hearing bundle was given to the Applicant just a few days before his appeal hearing with the majority of the documents in English thereby giving him insufficient time to prepare for his appeal due to his limited skills in English that he was unable to find language assistance and that his lack of understanding caused him confusion during the hearing that his credibility was found questionable.

12.These are however all just broad and vague assertions of the Applicant containing a few key words or 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 in what way did the Board unlawfully fetter its discretion or act in a procedurally unfair manner, or what sources of news relied on by the Board were unofficially recognized or hearsays or outdated, or how did the Board fail to make proper or careful inquiry or to have proper understanding of the Applicant’s situation in his home country. 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, nor do I find any basis or merits in his intended application 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.

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 NCF, records of his screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the Adjudicator for further time to enable him to better prepare for his appeal.

16.The fact is that it has also been established by both the Director and the Board in their respective 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.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.

18.Furthermore, the Applicant recently filed an affirmation requesting to withdraw his application as all his problems in his home country are “finished” and that he wants to go back to Bangladesh as soon as possible.

19.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 now safe for him to return to his home country, I accordingly dismiss his leave application.

Dated the 17^th day of May 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