Ahmed Zafar v. Torture Claims Appeal Board

HCAL 343/2020

[2022] HKCFI 1871

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 343 of 2020

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 54-year-old national of Bangladesh who entered Hong Kong illegally on 26 August 2015 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he 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”) for refusing 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 Motbaria, Feni, Bangladesh. After leaving school, he got married and raised a family with 3 children, made his living running his own business in Feni, and supported the political party Bangladesh Nationalist Party (“BNP”) as an ordinary supporter without any official post in the party.

3.In about June 2013 he was approached by some local AL supporters to join their party, of which he asked for some time to consider, and to which those AL supporters agreed and left.

4.Several days later those AL supporters came to the Applicant’s home looking for him, and after they were told by his wife that he was not in the house, they then left without any incidents.

5.However, in order to avoid those AL supporters, the Applicant left for Dhaka to stay in a friend’s place for the next 2 years without incidents, but on 28 June 2015 he departed Bangladesh 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 14 November 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 13 December 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”).

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 AL supporters upon his return to Bangladesh as low due to the absence of any past ill-treatment from them, that there was no evidence of any real or direct threats from them against the Applicant other than hearsays and his own speculations or any reason why there would still be any adverse interest in him after all these years since he left the country, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to upon his return to Bangladesh, 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 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 Chittagong where it would be difficult if not impossible for those local AL supporters to locate him.

8.On 24 December 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the scheduled oral hearing on 5 July 2019 before the Board without any explanation despite being asked thereafter to do so, nor did he request any further oral hearing for his appeal before the Board, and as a result the Board proceeded to deal with his appeal in his absence and on paper, and on 24 January 2020 the Board dismissed his appeal and also confirmed the decision of the Director.

9.In its decision the Board found the Applicant to have failed to provide any explanation for his failure to attend the scheduled oral hearing despite being asked to do so, that in the absence of any oral evidence or answers from him to clarify or explain the various inconsistencies and discrepancies identified by the Board in the decision which would have been raised with him had he attended the hearing that it found the Applicant to have failed to establish any well-founded fear of harm from those local AL supporters that caused him to leave his home country for Hong Kong, and that in any event in the absence of any reliable evidence of any official involvement that state/police protection would be available to the Applicant if needed upon his return to Bangladesh as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

10.On 9 March 2020 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 attached a copy of the decision which he rejects for disregarding the threats and danger that he would face if deported back to his home country but without providing any details or particulars or elaboration as to how it did so. As such I do not find any merits in this complaint of the Applicant, 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, nor do I find any reasonably arguable basis for his intended challenge either.

11.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.

12.In the Applicant’s case, the fact is that it has also 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.

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 20 May 2022 filed an affirmation requesting to withdraw his application as he has no more problem in his home country that he now wants to go home.

15.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 of no more problem for him to return to his home country, I accordingly dismiss his leave application.

Dated the 21^st 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