Chowdhury Mohammad Raju v. Torture Claims Appeal Board

HCAL 292/2021

[2022] HKCFI 84

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 292 of 2021

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 32-year-old national of Bangladesh who entered Hong Kong illegally on 7 September 2014 and surrendered to the Immigration Department on 25 September 2014 when 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 the political party Awami League (“AL”) for refusing to join their party and for supporting 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 Gopalganj District, Bangladesh.  After leaving school he made his living by selling garments in the local bazar, and followed in his family’s footstep to support BNP by regularly attending their local meetings and rallies.

3.One day in early 2004 he was approached by some local AL supporters who requested him to join their party, but he refused.  Several months later one night in November 2004 some AL supporters came to his home again to demand that he joined their party, and when he refused, they proceeded to beat him with choppers and hammers that he suffered serious injuries in his left leg and lost consciousness, and was subsequently taken to the hospital for medical treatments.

4.After his discharge from hospital, the Applicant dared not return to his home and therefore took shelter in his cousin’s home in Khulna District, but later when he heard that those AL people were still looking for him everywhere, he moved to various cities including Dhaka, and as he still feared for his safety, he therefore departed Bangladesh on 14 August 2014 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 (“NCF”) on 19 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).              

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

6.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 alleged risk of being harmed or killed by those local AL supporters upon his return to Bangladesh is real and foreseeable due to the low intensity and frequency of past ill-treatment from them, that conflicts between supporters of rival political parties were common in Bangladesh and there is no evidence or reason for those AL supporters to specifically target the Applicant given his status of just an ordinary supporter of BNP with no official post in that party, that in any event there had been no further attack on him since 2004 that it is doubtful after all these years 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 158 million people spread across a vast territory of more than 130,000 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 Dhaka where it would be difficult if not impossible for those local AL people to locate him.

7.On 14 September 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 12 January 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 4 March 2021 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from those local AL people in the absence of any evidence of any further attack on him since 2004 and that he was able to move safely within the country for years without harm before he left Bangladesh in 2014 that it is not accepted that he came to Hong Kong out of fear of harm from those local AL people, and that in any event in the absence of any official involvement that state/police protection would be available to the Applicant 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 ground.     

9.On 8 March 2021 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just attached a copy of the decisions but without putting forth any proper grounds 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. 

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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 47 – 87 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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.   

12.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 the Applicant’s claim if true 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.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 recently on 22 December 2021 filed an affirmation requesting to withdraw his application as his problem in his home country has been resolved.

15.In the premises, and 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 given his latest confirmation that his problem in his home country has been resolved, I refuse to grant leave and accordingly dismiss his application.

Dated the 6^th day of January 2022

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