Sofiqul Islam v. Torture Claims Appeal Board

HCAL 3114/2019

[2022] HKCFI 3451

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3114 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 39-year-old national of Bangladesh who entered Hong Kong illegally on 1 January 2007 and was arrested by police on 22 September 2007. 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 a fellow villager over a land dispute between the villager and the Applicant’s grandfather in the home village, and after it 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 Shahebabad, Brahman Para, District Comilla Bangladesh. After leaving school he worked as a farmer on his grandfather’s farmland in his home village.

3.In about 2000 his grandfather allowed a fellow villager AM to fish and grow plants in some part of his farmland to make a living, but soon AM became greedy by trying to occupy more land, and after doing so for many years he then proclaimed to be the owner of those land which led to serious disputes with the Applicant’s grandfather which led to court case for years, and eventually mass brawls between the 2 families.

4.In 2006 another fight broke out when AM with his son and some other men came on to the farmland to attack the Applicant and his grandfather with knives and wooden sticks, but the Applicant and his grandfather managed to flee from the scene without serious injuries.

5.On the same evening the Applicant and other relatives took their revenge by ambushing AM’s son with wooden sticks that he was injured and collapsed on the ground.

6.After the assault, and to avoid any police investigation or revenge by AM, the Applicant fled to Burirpar to hide in his aunt’s place, and then to another relative’s place in District Bikrampur before departing Bangladesh for China, and from there he later sneaked into Hong Kong, and after his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 14 May 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 26 June 2018 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”).

8.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 there will be any real risk of him being harmed or killed by AM or his followers upon his return to Bangladesh due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of AM to harm or kill him given that he was not the legal owner of the land in dispute, that in any event it was a private land dispute between his grandfather and AM without 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 157 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 the country away from his home district in large cities such as Sylhet where it would be difficult if not impossible for anyone to locate him.

9.On 3 July 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 3 September 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 17 October 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board accepted the Applicant’s claim of fear of harm arising from a land dispute between his grandfather and AM, but found no evidence or reason for AM and his family to specifically target the Applicant given that he had no legal title in the land which belonged to his grandfather or that they would still be any adverse interest in him after all these years since he left the country, and that in any event it was a private land dispute between the 2 families without any official involvement that state/police protection will be available to the Applicant 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 by anyone that his claim for non-refoulement protection failed on all applicable grounds.

11.On 21 October 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 put forward the following grounds for his intended challenge:

(1)  That the Board failed to comply with the requirements of the statute in the exercise of its power;

(2)  That the Board failed to take into account relevant matters or to give them weight; and

(3)  That there were mistakes, misunderstanding or ignorance of the relevant facts by the Board in assessing the Applicant’s claim.

12.These are however all just broad and vague assertions of the Applicant without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board failed to comply with the requirements of the statute or to take into account of relevant matters or what mistakes or misunderstanding of the relevant facts did the Board commit in its assessment of the Applicant’s claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

13.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.

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

15.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.

16.Furthermore, the Applicant recently on 30 September 2022 filed an affirmation requesting to withdraw his application as all his problems in his home country have been resolved and that he now wants to return to Bangladesh.

17.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 in view of his latest confirmation that all his problems have been resolved that he now wants to return to his home country, I accordingly dismiss his leave application.

Dated the 14^th day of November 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