Khan Mohammad Shaidul Islam v. Torture Claims Appeal Board

HCAL 1497/2019

[2020] HKCFI 1704

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO. 1497 OF 2019

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 51-year-old national of Bangladesh who entered Hong Kong illegally on 29 March 2015 and surrendered to the Immigration Department on 30 March 2015 when 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 political party Awami League (“AL”) as he supported rival Bangladesh Nationalist Party (“BNP”).  He was subsequently released on recognizance pending determination of his claim.  

2.The Applicant was born and raised in Village Bogia, District Magura, Bangladesh.  After leaving school he worked as a farmer in his home village, got married and raised a family of two children, and became a supporter of BNP without holding any official position but regularly attended their local meetings and rallies.

3.In 2013 some of the local AL supporters started to approach him to suggest that he should quit BNP to join their party, but he often refused and sometimes argued with them over their political differences, and on one such occasion in March 2015 after he was attacked by one of them with wooden sticks that his right hand was injured and required medical treatment at a local clinic, he became fearful for his life and fled to Boiltola Jessore to take shelter at his sister’s place, and later he departed Bangladesh for China, and from there he sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he later completed a Non-refoulement Claim Form on 23 May 2018 and attended screening interview before the Immigration Department with legal representation from Duty lawyer service.      

4.By a Notice of Decision dated 11 June 2018 the Director of Immigration (“the 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 found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by those local AL supporters upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from them, that 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 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 140,000 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 Sylhet where it would be difficult if not impossible for those AL supporters to locate him.

6.On 25 June 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 27 September 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 7 May 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found serious inconsistencies, discrepancies and contradictions in the Applicant’s claim between those given to the Director and those during his appeal hearing before the Board that did not accept that he was ever politically active in Bangladesh in the past or that he was or is of any adverse interest to anyone in Bangladesh or that he fears returning to Bangladesh for the reason he has claimed or that he will be harmed for any of the reasons as claimed, and concluded that he would not be at risk of any harm upon his return to Bangladesh and that there is not a real risk that he would face any of the proscribed forms of harm should he return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds. 

8.On 3 June 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date.

9.Before his application could be dealt with by the court, the Applicant on 24 June 2020 filed an affirmation for withdrawal of the application because “his problem in his home country has been solved.”

10.However, one month later on 23 July 2020 he filed another affirmation claiming that his problem was still not solved in his country and requested to continue with his leave application, but again he did not put forward any proper ground for his intended challenge against the Board’s decision.

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] HKXCA 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 essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 41 – 88 of its decision with the benefit of hearing his oral evidence and his answers to questions raised of his claim during his appeal hearing, 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.Furthermore, the fact is that it has been established by the Director in his decision 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, 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.

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

Dated the 3^rd day of August 2020.

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