Md Faruk v. Torture Claims Appeal Board

HCAL 1/2017

[2023] HKCFI 2897

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1 OF 2017

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 Hon Fung J:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 46-year-old national of Bangladesh who last arrived in Hong Kong on 6 November 2006 as a visitor with permission to remain as such up to 20 November 2006 when he did not depart and nearly 3 years later on 3 September 2009 he was arrested by the police for overstaying. 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 Bangladesh Nationalist Party (“BNP”) as he supported their rival Awami League (“AL”), or Sharif and Mizan who have tried to extort money from him, or the Rapid Action Battalion in Bangladesh for the criminal charges filed against him. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Patabhog, District Munshiganj, Bangladesh. After leaving school he ran his own shop selling electronic products. He was single and resided with his parents and siblings. In late 1999, he joined and supported AL as an ordinary supporter without holding any official post in the party.

3.After the BNP won the national election in 2001, the local AL and BNP supporters clashed in 2002 and 2004 which resulted in mass brawls involving hundreds of people on both sides until they were dispersed by the police. Not only was the Applicant injured in both of those fights and suffered minor injuries, he was also reported by the BNP supporters as a vandal and a major attacker.

4.The Applicant tried to avoid the local police and the BNP people and left his village for 2 months to stay in village Shimulia, then relocated to Dhaka to live with his different relatives. When he returned to his village, on 2 occasions Sharif and Mizan with their followers came to his shop and asked for money against and on both occasions when the Applicant refused, he was beaten until he lost consciousness and was taken to hospital. The Applicant then relocated and stayed in Dhaka again for about 1 year.

5.In 2006 the Applicant attended a political gathering and another fight broke out between AL and BNP supporters but the Applicant did not participate in the fight. After he was still reported for politician fighting, he was certain that the BNP people were after him. On 6 November 2006 he departed Bangladesh for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 June 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 30 January 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“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 assessed the level of risk of harm from the BNP people, or Sharif and Mizan, or the RAB upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence that the Applicant was specifically targeted by them or of any reason or intention of them to seriously harm or kill him given that he was just an ordinary AL supporter without holding any official post in the party, that the Applicant was able to leave his home country with his passport was indicative that he was not a wanted person by the local police or the RAB, that there is no evidence of any real intention of anyone to seriously harm or kill him, that in any event it was a private dispute between the Applicant and the BNP people or Sharif and Mizan 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 166 million people spread across a vast territory of more than 144,000 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 Bangladesh away from his home district in large cities such as Dhaka where the Applicant has stayed before without incident and where it would be difficult if not impossible for anyone to locate him.

8.On 12 February 2015 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 5 October 2015 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 20 December 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found inconsistencies discrepancies and exaggerations in the Applicant’s evidence that it doubted his claim of fear of harm from those local BNP supporters that caused him to leave his home country to come to Hong Kong for protection, that his evidence relating to him still being pursued by the local police or the RAB was merely hearsay and speculation, that his evidence lacked in detail and was not credible and that he had failed to establish that he has a well-founded fear of being harmed by anyone upon his return to Bangladesh that it concluded that his non-refoulement protection failed on all applicable grounds.

10.On 14 March 2017 the Director on his own initiative in writing invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 7 April 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Bangladesh. He did not lodge an appeal against this further decision of the Director.

11.Meanwhile on 3 January 2017 the Applicant has already filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  Procedural impropriety/unfairness in the Adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(2)  Irrationality in the Adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(3)  Irrationality in the Adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(4)  Irrationality in the Adjudicator’s failure to analyse and assess whether state protection exists in Bangladesh and misdirected himself as to the extended meaning of state protection;

(5)  Irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6)  Procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(7)  Procedural impropriety/unfairness in the Adjudicator applying the incorrect standard of proof in his decision; and

(8)  Procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.

12.These are however all just some vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant or necessary 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 Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient. 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.

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 at paragraphs 59 – 69 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.

15.The fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim if real 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.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.Moreover, the Applicant recently filed an affirmation requesting to withdraw his application as he wants to return to his home country because his problem in his home country has now been resolved.

18.In the premises, as I am for the given 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 that his problem was resolved and that he wishes to return to his home country, I accordingly dismiss his leave application.

Dated the 8^th day of Novemeber 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