Islam Mohammad Shariful v. Torture Claims Appeal Board

HCAL 102/2017

[2023] HKCFI 2896

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 102 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;

Order by Hon Fung J:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 39-year-old national of Bangladesh who entered Hong Kong illegally on 2 June 2004 and he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by supporters of the Awami League (“AL”) for being an active member of the rival Jamaat-e-Islami (JEI) and Vice-President of Jamaat Shibir (the youth wing of JEI) and the Secretary of the Shelaidah Union Council (“SUC”), and the Bangladeshi police over some false charges made by those AL supporters against him. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Kushtia, Bangladesh. After leaving school he worked as a quality control in-charge, got married and raised a family with a daughter. The Applicant’s father was the President of SUC and the Applicant followed his father to support the JEI and regularly attended their local meetings and rallies since 2004. He was elected as the Secretary of JEI of SUC in 2011 with a duty to organize party propaganda locally against the Bangladeshi government.

3.In December 2008 after AL won the general election, the Applicant’s family felt unsafe and moved out of his home village and remained a low profile. However, in 2013 when the Applicant began actively involved in preparing for the next election campaign again, he was informed by his friend who was a local policeman that he would be facing criminal charges reported by the AL supporters. On one occasion the Applicant was attacked and beaten by about 10 AL supporters with wood sticks until he lost consciousness.

4.Fearing for his safety, the Applicant fled from his home district to take shelter in his brother-in-law’s in Dhaka for a month and on 16 June 2013 he departed Bangladesh 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 28 April 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.While release on recognizance pending determination of his claim, the Applicant was arrested by police on 13 August 2014 for undertaking unauthorized employment and was subsequently convicted and sentenced to 15 month’s imprisonment.

6.By a Notice of Decision dated 24 September 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 AL people or the Bangladeshi police 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, that there is no reliable evidence of any adverse interest of them in the Applicant as he was only a Secretary of a local council instead of a high ranking leader, that the documents submitted by the Applicant did not match or support his claim of false charges being filed against him, that in any event it was a private dispute between the Applicant and the AL people 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 169 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 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 5 October 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 21 April 2016 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 21 March 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board did not accept the Applicant’s evidence that it rejected his claims of having any deep involvement in JEI or that there was any adverse interest of the Bangladeshi police or authorities in him that caused him to leave his country to come to Hong Kong , and that it is not satisfied that he will face any real or substantial risk of being subjected to any harm for his claimed reasons upon his return to Bangladesh that it concluded that his non-refoulement protection failed on all applicable grounds.

10.On 12 April 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 4 May 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.On 27 March 2017 the Applicant 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.At the hearing of this application, the Applicant has been asked to substantiate his grounds. He repeated his claims as before and said that he has submitted everything he could.

13.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.

14.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.

15.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 66 – 84 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.

16.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.

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

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