Alam Mohammad Rashedul v. Torture Claims Appeal Board

HCAL 2126/2020

[2023] HKCFI 1104

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2126 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 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 entered Hong Kong illegally on 19 April 2013 and was arrested by police on 5 May 2013. 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 some local supporters of the political party Awami League (“AL”) as he supported their rival Islami Oikya Jote (“IOJ”) and refused to join AL, 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 Dhanikhola, South Bhatipara, Trisal, Mymensingh, Bangladesh. After leaving school he continued to live with his parents in his home village, and supported IOJ regularly attended their local meetings and activities.

3.In 2011 he was approached by the local AL leader and his followers to join AL but he refused, and after several unsuccessful attempts to lure him with financial gains to join AL, those AL people became furious with him and made threats against him, and on one incident in June 2012 he was attacked by those AL people with knives that he suffered injuries to his left arm.

4.After the attack the Applicant became fearful for his safety and fled to Chittagong to take shelter in his sister’s place, and on 22 September 2012 he departed Bangladesh for China, and from there he later sneaked into Hong Kong and raised his torture claim with the Immigration Department, and after it was rejected he then sought non-refoulement protection on the same basis, for which he completed a Supplementary Claim Form (“SCF”) on 26 November 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 14 December 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found his account of various events occurred prior to his departure of Bangladesh vague, inconsistent and lack of necessary details that his claim of fear of harm from the AL people that caused him to leave his home country for Hong Kong was deemed as doubtful and not credible, that in any event the level of such risk of harm upon his return to Bangladesh is assessed as low due to the low intensity and frequency of past ill-treatment from those local AL supporters, that there is no evidence or reason for them to specifically target the Applicant given that he was just an ordinary IOJ supporter without any official post in the party, 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 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 Dhaka where it would be difficult if not impossible for anyone 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 15 September 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 16 October 2020 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 considered that he had exaggerated and fabricated his political activities or involvement with IOJ which was further undermined by his failure to raise his claim upon first arriving in Hong Kong until some 3 weeks alter and after his arrest by the police that it rejected his claim of fear of harm from the AL people to caused him to leave his home country to come to Hong Kong for protection, and concluded that his claim for non-refoulement protection failed on all applicable grounds.

9.On 23 October 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 or in his supporting affirmation of the same date in which he just stated that he is not satisfied with the decision as it failed to conduct sufficient enquiry into the relevant COI but without providing any details or particulars or elaboration as to how it failed to do so, nor did he request any oral hearing for his application. 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 34 – 59 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 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.In the premises and 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 filed an affirmation requesting to “cancel” his application as he wants to return to his home country.

15.In the premises, as I am for the given reasons 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 of his intention to return to his home country, I accordingly dismiss his leave application.

Dated the 3^rd day of May 2023

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