Jalil Km Anwar Hossain v. Torture Claims Appeal Board

HCAL 777/2017

[2024] HKCFI 3226

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 777 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 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 31-year-old national of Bangladesh who entered Hong Kong illegally on 14 July 2014 and was arrested by police on 15 July 2014.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection 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 Bangladesh Nationalist Party (“BNP”).  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Bahadurpur, Chargas, Kasba of Brahmanbaria, Bangladesh where he attended a local college and joined the student wing of BNP but frequently came into conflicts with students of the AL’s student wing.

3.In 2013 he started to also receive threats from those AL students that they would kill him if he continued to support BNP, and when he gradually became concerned for his safety, he quitted college and fled for Mirpur, Dhaka to take shelter in an uncle’s place before moving on to Jessore to stay with his elder brother, but after hearing about an incident when some BNP supporters were attacked by AL people with hockey sticks and wooden sticks that led to severe injuries, the Applicant felt it was no longer safe to remain in Bangladesh, and so on 13 July 2014 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 18 April 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

4.By a Notice of Decision dated 22 August 2016 and a Notice of Further Decision dated 10 July 2017 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”).

5.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 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 of any real intention of them to seriously harm or kill him or any political reason for them to specifically target him or to have any adverse interest in him after all these years since he left the country, that in any event 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 168 million people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied young adult to move to other areas of the country away from his home district in large cities such as Dhaka where it would be difficult if not impossible for anyone to locate him.

6.On 31 August 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which he attended an oral hearing on 20 June 2017 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 15 September 2017, his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.In its decision the Board found material inconsistencies discrepancies and implausibility in the Applicant’s evidence that it rejected the credibility of his claim of fear of harm from the AL supporters that caused him to leave his country to come to Hong Kong to seek protection, and that it concluded that the Applicant is not a witness of truth that no credence can be attached to any of his statements that he failed to establish any of the facts that he had asserted that his claim for non-refoulement protection failed on all applicable grounds.    

8.On 17 October 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 the COI conditions had the material consequences of a failure to have regard to relevant and up-to-date COI research with the consequences that the decision in dismissing the Applicant’s case was founded upon an unfair procedure;

(2) Irrationality in the Adjudicator’s failure to take into account and consequently failed to put any weight on the relevant COI and failure to take into account highly relevant information in the said COI with cherry picking and putting weight on information of little or no relevance or outdated publication that the Adjudicator arrived in the decision dismissing the Applicant’s case that was unreasonable in Wednesbury standard;

(3) Irrationality in the Adjudicator’s failure to evaluate and make a finding of fact as to whether there exist in Bangladesh a consistent pattern of gross fragrant and mass violation of human rights that resulted in a decision that is unreasonable;

(4) Irrationality in the Adjudicator’s failure to analysis and assess whether state protection exists in Bangladesh under the extended meaning of whether the State had exercised due or sufficient diligence that the Adjudicator misdirected herself on the law and erroneously stated what the extended meaning of state protection was;

(5) Irrationality in that the board took into account and put weight on irrelevant considerations or considerations that were incorrect, inaccurate or not based on facts or facts not reasonably inferred and failed to take account on facts and inferences that were favourable to the Applicant with the consequence that the board arrived at a decision in dismissing the Applicant’s case that was unreasonable;

(6) Procedural impropriety in the Board’s failure to call for psychological and psychiatric evaluations and reports at any stage of the screening or appeal state;

(7) Procedural impropriety/unfairness in that the Adjudicator applied the incorrect standard of proof in the decision;

(8) Procedural impropriety/unfairness in the failures of the assigned lawyer resulted in a lack of or insufficient legal representation for the Applicant that he was not afforded a fair procedure;

(9) Procedural impropriety/unfairness in the Adjudicator’s failure to arrange an oral hearing for the Applicant.           

9.These are however all just bare 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 was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy or reason for there to be any psychological or psychiatric reports or evaluation of the Applicant for his appeal before the Board, or how did the Board failed to apply the correct standard of proof, or what failure as to the legal representation for the Applicant, while it is clearly factually incorrect that the Applicant was not given any oral hearing for his appeal before the Board when the record clearly show that he did attend one before the Board on 20 June 2017 during which he did make his representation of his claim to the Board with the assistance of an interpreter. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

10.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.

11.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 23 – 43 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.

12.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even 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 agreed and 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.                

13.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.

14.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of the latest confirmation of the Immigration Department of the Applicant’s subsequent departure from Hong Kong to return to Bangladesh, I therefore refuse to grant leave and accordingly dismiss his application.

15.Given the Applicant’s departure and with no valid address in Hong Kong, I direct that a copy of this decision together with the sealed order be provided to the Immigration Department with a request that they be forwarded to the Applicant in Bangladesh.

Dated the 19^th day of November 2024

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