Golam Kibria v. Torture Claims Appeal Board

HCAL 3473/2019

[2022] HKCFI 149

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3473 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 44-year-old national of Bangladesh who last arrived in Hong Kong on 26 March 2006 as a visitor with permission to remain extended up to 17 April 2006 when he did not depart and instead overstayed, and was arrested by police on 25 July 2006. After he was referred to the Immigration Department 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 political parties Awami League (“AL”) or Bangladesh Nationalist Party (“BNP”) for refusing to join their parties, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Dakkhin Som, District Gazipur, Bangladesh. After leaving school he went to Malaysia to work in an electronic factory before returning to Bangladesh in 2001 to assist his father running the family’s grocery store in his home village.

3.In 2002 he followed his father’s tradition to support the political party Bangladesh Jatiya Party (“BJP”) by regularly attending their local meetings and rallies. However, soon some of the local AL and BNP supporters would approach both the Applicant and his father with demands to join their parties, and when they refused, those men then made threats against them, and after one incident when they came to his father’s grocery store to ransack and damage the store, and also abducted the Applicant to a place where he was beaten for days before he eventually managed to make his escape for safety and to return to his home.

4.After the incident, the Applicant’s father closed down his grocery store and moved the family to his grandmother’s place in the neighboring village, and later the Applicant moved to Tikatoli in Dhaka where he ran his own grocery store without any further incidents, but as he still feared for his safety, he on 27 February 2006 departed Bangladesh for Hong Kong where he subsequently overstayed, and upon his arrest by the police, he then 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 15 October 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 27 December 2018 the Director of Immigration (“The 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”).

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 or BNP 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 or reason for those AL or BNP supporters to specifically target him given that he was just an ordinary BJP supporter with no official post in the party and that after all these years since he left the country 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 159 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 Dhaka where he had stayed before without incidents and where it would be difficult if not impossible for his perceived enemies to locate him.

7.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 23 September 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 1 November 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found major gaps, inconsistencies and discrepancies in the Applicant’s bare assertions unsupported by any reliable evidence as to his alleged involvement in politics in Bangladesh or his claimed support of BJP or that he and his father had been harassed or threatened by AL or BNP supporters or that he had been abducted and assaulted for days that caused him to flee his country for asylum in Hong Kong, and that it rejected his claim and concluded that there is not a real risk that the Applicant would face any of the proscribed forms of harm upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.   

9.On 25 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 stated that he rejects the decision as it disregarded the danger and threats that he will face in his home country but without providing any details or elaborations as to how it did so or put forth any other 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.

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 80 – 131 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 also been correctly established by the Director in his decision 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, a decision also confirmed by the Board, 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 has been resolved in his home country.

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 in view of his latest confirmation that his problem has already been resolved in his home country, I refuse to grant leave and accordingly dismiss his application.

Dated the 12^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