Islam Ashraful v. Torture Claims Appeal Board

HCAL 7/2022

[2023] HKCFI 1495

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 7 OF 2022

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 29-year-old national of Bangladesh who entered Hong Kong illegally on 13 February 2020 and surrendered to the Immigration Department on 10 March 2020 when he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by his paternal uncle and his cousins over some land dispute in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Kabir Nagar, Asir Nagar, Dowara Bazar, District Sunamganj, Bangladesh. After leaving school he ran a stationary store for his living, got married and raised a family with one child in his home village.

3.After his father passed away in 2015, the Applicant subsequently inherited some farmland from his father’s estate in his home village, but which were coveted by his paternal uncle who raised issues over the title of those land and demanded that they should be transferred to him instead, and when the Applicant refused, his uncle and cousins then made death threats against him.

4.After several attempts by his uncle and cousins to attack him, the Applicant became fearful for his life, and fled to other places including Chittagong and Dhaka, but when he later heard that his uncle and cousins were still looking for him everywhere, the Applicant felt it was no longer safe to remain in Bangladesh, and so on 10 February 2020 he departed 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 25 November 2020 and attended screening interview before the Immigration Department with legal representation.

5.By a Notice of Decision dated 31 May 2021 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”).

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 his uncle and cousins upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of them to seriously harm or kill him, that in any event it was a private family dispute over some land in his home village 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 164 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 where it would be difficult if not impossible for his uncle and cousins to locate him.

7.On 11 June 2021 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 26 October 2021 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 22 December 2021 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found no evidence of any real intention of the Applicant’s uncle or cousins to seriously harm or kill the Applicant over their land dispute, and that in any event it was a private family dispute between them without any official involvement that state or police protection would be available to the Applicant upon his return to Bangladesh to negate such risk as well as reasonable internal relocation for him to move safely to other part of the country away from his home village without any risk of being located by his uncle or cousins that his claim for non-refoulement protection failed on all applicable grounds.

9.On 4 January 2022 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his Form he put forward the following grounds for his intended challenge:

(1)  Procedural unfairness in that the Board’s decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(2)  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 requirements;

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

(4)  Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(5)  That in dismissing the Applicant’s appeal the Adjudicator failed to interact with the facts of the Applicant’s claim or conducted any analysis of the supporting documents or to turn his mind to the ground under consideration being the risk of violation of the Applicant’s right to life under BOR 2 Risk;

(6)  That the Board significantly relied on source of news not officially recognized or were simply hearsays;

(7)  That the Adjudicator relied on COI which were outdated in considering the dramatic changes in his home country that the lack of credible source of information had resulted in making groundless speculations; and

(8)  That the Adjudicator failed to consider that the Applicant’s problems in his home country were very severe or the documents submitted by the Applicant in support of his claim.

10.These are however all just vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant 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 information or COI relied on by the Board that were not officially recognized or were hearsays or outdated. None of these assertions were elaborated or presented with any relevant particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

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 for the thorough and detailed analysis and reasoning set out in paragraphs 20 - 46 in its decision with the benefit of hearing the Applicant 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.The fact is that it has been established by both the Director and the Board in their respective decisions 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.

14.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.Furthermore, the Applicant recently filed an affirmation requesting to withdraw his application as he no longer has any problem returning to his home country.

16.In the premises, as I am for the stated reasons 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 of no problem returning to his home country, I accordingly dismiss his leave application.

Dated the 7^th day of June 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