Mannan Sheikh Abdul v. Torture Claims Appeal Board

HCAL 3271/2019

[2020] HKCFI 3143

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3271 of 2019

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 (counsel for) 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 40-year-old national of Bangladesh who entered Hong Kong illegally on 26 August 2015 and was arrested by police on the same day. 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 some local supporters of rival political party Awami League (“AL”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in a village in Bhagyakul, Srinagar of Munshiganj District, Dhaka, Bangladesh. After leaving school he worked in various jobs, got married and raised a family of 2 children in his home village, and supported the political party Bangladesh Nationalist Party (“BNP”) regularly attended their local meetings and activities.

3.In 2014 AL won the general election and became the ruling party, and one day in January 2015 while the Applicant and other fellow supporters were attending a local BNP meeting, a group of AL supporters arrived to demand that they should leave the place, and when the BNP supporters refused, the AL supporters attacked them with wooden sticks and other weapons causing many injuries, but the Applicant managed to escape from the scene.

4.Thereafter he started to receive threats from those AL supporters with demands for him to leave his party and to join theirs, he therefore became concerned for his safety and fled from his home village, but when he later heard from his family that those AL supporters were looking for him everywhere, he therefore departed Bangladesh on 19 August 2015 for China, and from there he 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 on 7 August 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 31 August 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”).

6.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 that he had been specifically targeted by the AL people and that after all these years that it is doubtful that there would still be any adverse interest in him, 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 (“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 part of Bangladesh away from his home district in large cities such as Chittagong where it would be difficult if not impossible for those local AL supporters to locate him.

7.On 10 September 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 31 July 2019 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 31 October 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted the Applicant’s claim that he may have been threatened by some local AL supporters in his home village but doubted that after all these years that anybody would still have any adverse interest in him, and that in any event with the option of internal relocation for him to move safely to other part of Bangladesh away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

9.On 4 November 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, and in his supporting affirmation of the same date he merely attached a copy of the decision but without putting forward any proper ground for his intended challenge, and in the absence of any error of law or procedural unfairness being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis 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 fact is that it has been established by both the Director and the Board in their respective 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

12.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.

13.In any event, the Applicant on 24 September 2020 filed an affirmation requesting to withdraw his application as he wants to go back to his home country. In the premises, and as I am not satisfied for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review, it would therefore be appropriate for his application to be dismissed rather than withdrawn, and according I dismiss his leave application.

Dated the 23^rd day of December 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