dulal Alias Dulal Md v. Torture Claims Appeal Board

HCAL 2249/2019

[2022] HKCFI 1778

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2249 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 40-year-old national of Bangladesh who arrived in Hong Kong on 6 October 2006 as a visitor with permission to remain up to 20 October 2006 when he did not depart and instead overstayed, and upon his subsequent arrest by the police and was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement 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 refused to join their party. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Chandani, District Shariatpur, Bangladesh. After leaving school he worked as an electrician in his home village, and followed his family’s tradition to support AL and regularly attended their local meetings and rallies.

3.In about 2001 some local BNP supporters started to approach the Applicant and his family members to invite them to join their party, and when they refused, they then made threats against them.

4.One day in 2005 those BNP supporters again came to the Applicant’s home to demand the Applicant and his parents and siblings to join their party, and when they refused, those BNP supporters proceeded to beat them, and before they left they warned that next time if they still refused to do so, they would be killed.     

5.After several similar threats and assaults from the BNP people, the Applicant and his family in 2006 moved to the Tongi area near Dhaka to avoid those threats, but as the Applicant still feared for his safety, he therefore departed Bangladesh on 6 October 2006 for Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 25 March 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.By a Notice of Decision dated 9 October 2014 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 BNP supporters upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that since he left the country that his family has been able to continue to live in Bangladesh without further incidents, that after all these years and as AL have since become the ruling party of the country that it is not accepted that the BNP supporters would still have any adverse interest in the Applicant, 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 166 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 AL has a strong hold and where it would be difficult if not impossible for those BNP supporters to locate him

8.On 20 April 2017 the Director on his own initiative invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 12 May 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Bangladesh.

9.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 22 October 2014, and for which he attended 2 oral hearings on 1 April 2015 and 16 April 2019 before the Board, and during the 2^nd hearing he gave further evidence and answered questions raised of his claim under all the applicable grounds by the Adjudicator for the Board. On 30 July 2019 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence between those given to the Director and to the Board that it doubted the credibility of his claim of fear of harm from those local BNP supporters which was further undermined by his failure to raise such claim upon his arrival in Hong Kong until after his subsequent arrest by the police, and that in any event in the absence 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 area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all the applicable grounds.    

11.On 7 August 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 or in his supporting affirmation of the same date to which he just attached a copy of the decision 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.

12.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.

13.In the Applicant’s case, the fact is that it has been correctly 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.                

14.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.

15.Furthermore, the Applicant recently on 12 May 2022 filed an affirmation requesting to withdraw his application as all his problems have been resolved and that he wants to return to his home country as soon as possible.

16.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 given his latest confirmation that he has resolved all his problems in his home country, I accordingly dismiss his leave application.

Dated the 14^th day of June 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