Alam Khairul v. Torture Claims Appeal Board

HCAL 2011/2019

[2021] HKCFI 2935

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2011 of 2019

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 35-year-old national of Bangladesh who arrived in Hong Kong on 24 June 2017 with permission to remain as a visitor up to 21 August 2017 when he did not depart and instead overstayed, and on 28 August 2017 he surrendered to the Immigration Department and 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 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 Motijheel, Dhaka, Bangladesh. After leaving school he ran a fabrics business in his home district, and supported BNP regularly attended their local meetings and rallies, during which he and his fellow BNP supporters frequently came into conflicts with the local AL supporters.

3.In early 2017 his confrontation with certain local AL leader became violent, and after one incident when he was attacked by a group of AL supporters and suffered injuries that required medical treatments at the local hospital, the Applicant became fearful for his safety, and so on 23 June 2017 he departed Bangladesh for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 10 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.By a Notice of Decision dated 27 August 2018 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 found no substantial grounds for believing that his claimed risk of harm by those local AL supporters upon his return to Bangladesh would materialize due to the low intensity and frequency of past ill-treatment from them and that there is no evidence that he had been specifically targeted by those AL people for harm, 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 158 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 Comilla where it would be difficult if not impossible for those local AL people to locate him.

6.On 11 September 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s, and for which he attended an oral hearing on 4 April 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 23 May 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board accepted the Applicant’s claim of conflicts with the local AL supporters but found no reliable evidence that he had been specifically targeted by the AL party or that he was of any interest to AL prior to his departure of Bangladesh, and that in any event with reasonable internal relocation available within Bangladesh for him to move safely to other area away from his home district without any risk of being located by those local AL supporters that his claim for non-refoulement protection failed on all applicable grounds.  

8.On 15 July 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 just repeated his claim that his enemy is still looking for him in his home country and that his life is therefore still in danger there without putting forth 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.

9.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.

10.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.     

11.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.

12.Furthermore, the Applicant recently on 13 September 2021 filed an affirmation requesting to withdraw his application as he wishes to return to Bangladesh as soon as possible for medical reason.  

13.In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view his latest confirmation of his wish to leave Hong Kong to return to his home country, I accede to his request and accordingly dismiss his leave application.

Dated the 30^th day of September 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