Jahangir Mal Alias Mal Jahangir v. Torture Claims Appeal Board

HCAL 1663/2020

[2021] HKCFI 467

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1663 of 2020

BETWEEN

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 41-year-old national of Bangladesh who entered Hong Kong illegally on 11 October 2015 and was arrested by police on 25 October 2015. 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 the local supporters of rival political party Awami League (“AL”) for refusing to join their party.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Moshura, Bhojeshwar, Naria, Shariatpur District, Bangladesh.  After leaving school he worked in construction sites in his home district, and became a supporter of the political party Bangladesh Nationalist Party (“BNP”) without any official post but regularly attended their local meetings and rallies.

3.One day in early 2013 he was approached by several AL supporters in the market who invited him to join their party, but when he refused, they became furious and started to slap and punch him, and before they left they threatened to kill him if he still refused to quit BNP and to join AL.

4.After the attack and when he felt that the local police were not helping, the Applicant left for Dhaka to take shelter at a friend’s place for several months before returning to his home village where he resumed his participation in BNP’s activities.

5.However, when he ran into the same group of AL supporters in the market and when they again made threats against him to leave BNP and to join their party, the Applicant felt it was no longer safe to remain in Bangladesh, and so on 7 May 2013 he departed 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 on 27 November 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

6.By a Notice of Decision dated 2 January 2019 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”).

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 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 the Applicant had been specifically targeted by the AL supporters or any reason for them to do so given that he had no official post in BNP, 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 areas 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.

8.On 15 January 2019 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 4 December 2019 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 15 July 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found the Applicant’s evidence vague, lack of details and evasive that it doubted the credibility of his claim, but found in any event in the absence of any evidence of official involvement that state/police protection would be available to him upon his return to Bangladesh as well as reasonable internal relocation for him to move safely to other areas away from his home district without any risk of being located by any AL people that his claim for non-refoulement protection failed on all applicable grounds.

10.On 17 August 2020 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 Board’s decision but without putting forward any proper ground for his intended challenge.  As such and in the absence of any error of law or irrationality 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 for his intended challenge.

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] HKCA 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 fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his 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.     

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.Furthermore, the Applicant on 1 February 2021 filed an affirmation to request to withdraw his leave application because all his political problems in Bangladesh are finished and that there is no problem for him to return to his home country.

15.Accordingly, 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, and in view of the Applicant’s latest confirmation that his problem in his home country has been solved and that it is safe for him to return, I therefore accede to his request and dismiss his leave application.

Dated the 24^th day of February 2021.

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