Khan Mohammed Abdula Al Kaies v. Torture Claims Appeal Board

HCAL 882/2021

[2023] HKCFI 3207

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 882 OF 2021

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 34-year-old national of Bangladesh who entered Hong Kong illegally on 11 November 2011 and was arrested by police on 22 September 2012.  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 members of the political party Awami League (“AL”) over their political disputes with his father and/or by the Bangladeshi police due to some false murder charge filed by those AL members against him, and after his torture claim was rejected, he then sought non-refoulement protection on the same bases. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Trishal, District Mymensingh, Bangladesh. After leaving school he ran his own shop selling garments in his home village, and followed his father’s footstep to support the political party Jamaat-e-Islam (“JEI”) regularly attended their local meetings and activities.

3.During a local election in March 2011 the Applicant’s father had a dispute with some AL members over the election result, and a few days later those AL members came to his father’s shop to abuse and threaten his father, and upon hearing about the incident the Applicant was furious and confronted those AL members on the street which turned into a fight between them until they were separated by passers-by.

4.Thereafter those AL members would come to the Applicant’s shop to harass his customers and disturb his business, and several days later the Applicant discovered that his shop had been broken in with goods stolen, of which he suspected was carried out by those AL members but the police refused to arrest them for lack of evidence.

5.Soon thereafter a friend of the Applicant’s father was murdered, and when the Applicant heard that the AL members had made a false claim to the police that he was responsible for the murder, the Applicant became fearful for his safety and fled to India on 25 October 2011 but decided to return to Bangladesh on the next day.      

6.Shortly thereafter on 28 October 2011 the Applicant again departed Bangladesh but this time for China, but from there he later travelled to Hong Kong but was refused entry and was returned to China, and 2 weeks later on 11 November 2011 he illegally sneaked into Hong Kong, and upon his subsequent arrest by the police he raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 16 June 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 30 July 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 members or the Bangladeshi authorities upon his return to Bangladesh as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of those AL people to seriously harm or kill the Applicant or to have any adverse interest in him after all these years since he left country in 2011, nor is there any evidence that they had made any false charge against him to the police other than his own speculation or that the police or authorities to have any adverse interest in him given the fact that he was able to leave and return to the country without any problem, that in the absence of any official involvement that state or police protection would be available to the Applicant from those AL people 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 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 areas of the country away from his home district in large cities such as Dhaka or Chittagong where it would be difficult if not impossible for anyone to locate him.

9.On 13 August 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 11 November 2020 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 15 April 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found no reliable evidence of any adverse interest of the Bangladeshi authorities or police in the Applicant over any criminal or murder charge against him other than the Applicant’s own speculations and hearsays and the fact that he was able to leave and re-enter the country without any problem that it is not accepted that he will face any risk of harm from the Bangladeshi authorities, that even if it is indeed true that he is being wanted by the authorities for any criminal charge that he would be a fugitive of the law not entitled to any non-refoulement protection, nor is it accepted that he would face any real risk of harm from any AL supporters or members given that he was just an ordinary JEI supporter without holding any official post in the party that there is no reason for those local AL people to specifically target him or to have any adverse interest in him after all these years since he left the country in 2011, and that in any event it arose from some private election dispute between his father and those AL people without any official involvement that state or police protection would be available to the Applicant upon his return to Bangladesh as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

11.On 18 June 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1) That the Adjudicator reached the decision wrongly in that it was not reasonable or fair as required by the Wednesbury test in failing to recognize that the Applicant’s life must be protected by criminal law from extra-judicial killings that he may face if deported back to his home country;

(2) That the Board failed to appreciate or give proper weight of importance to the presence State Acquiescence in the Applicant’s case that led to an unfair outcome of rejecting his non-refoulement claim that he tortured at the behest of the state law enforcement agencies as well as politicians that the state should be rendered liable to him by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3) That the Adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on COI but failed to take the Applicant’s personal background and experience into account and had listed relevant COI which supported his aversions that the police in his home country would not be able to protect and failed to consider or give enough weight in such evidence and instead ruled otherwise against the Applicant which was a clear case of unfair attitude shown by the Board which is enough to render the decision void;

(4) That the Board failed to recognize the fact that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports which stated testament to the Applicant’s assertions that the Board failed to attain high standards of fairness required by Wednesbury test in the decision which should be considered as unreasonable in the scope of public law;

(5) That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept explanations provided by the Applicant and unreasonably required him to respond to questions that he was not in a position to offer any answer;

(6) That the Adjudicator failed to take into account the nexus of political parties and official corruption which exists in the Applicant’s home country making persecution effectively persecution by the State; and

(7) That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow the appeal and that the decision was thus irrational.    

12.By then the Applicant’s Form 86 was slightly out of time as it was filed 3 days outside the 3-month period required under Order 53 rule 4 (1) of the Rules of the High Court, Cap. 4A, but given its insignificant delay, I propose to focus on the merits, if any, of his intended application.

13.However, those proposed grounds of the Applicant for his intended challenge are just some vague and bare assertions 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 was the decision unfair or unreasonable or that State Acquiescence or extra-judicial killing were relevant to his case, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what evidence is there that the Applicant had ever been tortured by the state authorities or law enforcement agencies or politicians, or how did the Adjudicator act procedurally unfair or unreasonable.  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.

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 vDirector 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 in paragraphs 65 - 76 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 established by both the Director and the Board in their respective decision that the risk of harm from the local AL supporters 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK vJenkins & Anor [2013] 1 HKC 526.

17.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.Moreover, the Applicant recently on 19 September 2023 filed an affirmation requesting to withdraw his application as all his problems in his home country have been resolved that he now wants to return to Bangladesh.

19.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 of no more problem for him to return to his home country, I accordingly dismiss his leave application.

Dated the 12^th day of December 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