Mohammad Shahin Sikder v. Torture Claims Appeal Board

HCAL 47/2019

[2021] HKCFI 3712

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 47 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:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 45-year-old national of Bangladesh who last arrived in Hong Kong on 24 January 2006 with permission to remain as a visitor for 14 days when thereafter he did not depart and instead overstayed, and was subsequently arrested by police on 12 March 2006.  After he was referred to the Immigration for investigation, he raised a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by the local supporters of the political party Bangladesh Nationalist Party (“BNP”) as he supported their rival Awami League (“AL”), and after his torture claim was rejected, he then sought non-refoulement protection on the same basis.  He was subsequently released on recognizance pending determination of his non-refoulement claim.

2.The Applicant was born and raised in Village Patabhog, Sreenagar, Munshiganj, Bangladesh.  After leaving school he ran a grocery store in his home village, and supported AL regularly by attending their local meetings and rallies.

3.In about November 2005 he was approached by a local BNP leader and his followers who asked him to join their party, but when he refused, they started to threaten and harass him at his store, and after one occasion when he was assaulted by them with wooden sticks and that his store was damaged and vandalized, the Applicant became fearful for his life and fled to Dhaka, and from there he later departed Bangladesh on 24 January 2006 for Hong Kong where he overstayed, and upon his arrest by the police he raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 25 November 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 5 April 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 BNP supporters upon his return to Bangladesh as low 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 (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 156 million people spread across a vast territory 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 or Dhaka where he had stayed before without incidents and where it would be difficult if not impossible for those local BNP supporters to locate him.

6.On 18 April 2017, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which he attended two oral hearings on 1 and 20 August 2018 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 31 December 2018, his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.In its decision the Board found major inconsistencies and discrepancies in the Applicant’s evidence that it did not consider his claim to be credible, that in any event AL has since become the ruling party and that after all those years since he left the country that it is doubtful that any of those local BNP supporters would still have any adverse interest in him, and that in the absence of any evidence of any 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 that his claim for non-refoulement protection failed on all applicable grounds.

8.On 7 January 2019, the Applicant filed his Form 86 for leave to apply for judicial review of the decision of the Board, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date for his intended challenge, nor did he request any oral hearing for his application.  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 ChamindaPushpa 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 decisions 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.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.

12.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 9^th day of December 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