Hanif Mohammed v. Torture Claims Appeal Board

HCAL 2476/2019

[2023] HKCFI 1141

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2476 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 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.Applicant is a 48-year-old national of Bangladesh who entered Hong Kong illegally on 14 January 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 some local supporters of the political party Awami League (“AL”) as he supported their rival Bangladesh Nationalist Party (“BNP”) and/or by the police over some false charges brought against him by his wife in their divorce proceedings. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Joar Kachar, Feni Sadar, Bangladesh. After leaving school he worked in various odd jobs in his home district, and supported BNP regularly attended their local meetings and rallies without holding any official post in the party.

3.In 2003 some of the local AL supporters invited him to join AL, but when he refused, they threatened him and even beat him in the street on one occasion that he fled to Chittagong for 2 weeks before returning to his home village where he kept a low profile, and in 2004 he went to work in Dhaka.

4.In early 2005 he returned to his home village and voted for BNP in the general election, but when he was spotted by those AL supporters, they beat him with wooden sticks and even burnt down his house. 

5.In 2010 he married his wife arranged by his family, but as his wife supported AL which led to serious differences between them that his wife subsequently brought a divorce case against him based on some false charges that he was arrested by police and was only released later on bail which he later absconded by fleeing to Dhaka, and from there he departed Bangladesh on 28 October 2014 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 20 August 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 10 September 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 found no substantial grounds for believing that there will be any real and substantial risk from those local AL supporters or the police 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 or reason for those AL supporters to have any real intention to seriously harm or kill him given that he was just an ordinary BNP 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, nor is there any evidence of any further adverse interest of the police or authorities in him over any false charges made against him by his former wife when the documents produced by the Applicant show that he has since settled his dispute with his wife who has also withdrawn all her charges against him without any further court action against him, 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 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 the country away from his home district in large cities such as Chittagong or Dhaka where it would be difficult if not impossible for anyone to locate him.

8.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 12 August 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 22 August 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found inconsistencies and contradictions in many aspects of the Applicant’s evidence given in his appeal hearing that raised serious issues about the credibility of his claims in particularly in relation to his alleged political activities in Bangladesh and the charges and court case brought against him by his former wife which also contradicted those previously made by him to the Director as well as by those documents produced by him relating to such charges brought against him by his wife that it rejected his claim of being an active member of BNP and accordingly that he had failed to establish any basis for his claim that he faces real risk that he would suffer serious harm at the hands of the AL supporters, or that he faces arrest due to charges brought against him by his wife are false and contradicted by his own documents that there are no substantial grounds for believing that he will face any real risk of harm or ill-treatment by anyone upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.  

10.On 27 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 in which he just stated that the decision is unfair and unreasonable but without providing any details or particulars or elaboration as to how it is 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.

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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 23 – 50 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.

13.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.

14.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.

15.Furthermore, the Applicant recently filed an affirmation requesting to withdraw his application as his problem in his home country has been resolved and that he wants to return home to Bangladesh.  

16.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 that he now has no problem returning to his home country, I accordingly dismiss his leave application.

Dated the 12^th 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