Islam Mohammed Ariful v. Torture Claims Appeal Board

HCAL 3178/2019

[2023] HKCFI 1980

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3178 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.The Applicant is a 34-year-old national of Bangladesh who entered Hong Kong illegally on 6 September 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”) as he supported their rival Bangladesh Nationalist Party (“BNP”).  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Islampur Colony, Pahartali, Chittagong District, Bangladesh. After leaving school he worked as a mechanic in his home district, and supported BNP regularly attended their local meetings and activities.

3.In June 2012 BNP called for a country-wide strike in protest against the government ran by AL as the ruling party, during which the Applicant and his fellow BNP supporters were confronted by the local AL supporters which led to a mass brawl resulting in many injuries to the BNP supporters, but the Applicant managed to escape back home unharmed.

4.In retaliation BNP planned an attack on the AL people in December 2013 shortly before the forthcoming general election by attacking them with wooden sticks and hockey sticks inflicting injuries to many of the AL people.

5.After the incident and to avoid retaliation from the AL people or the police, the Applicant fled to Argabad and Comilla to hide in places of his friends for months before returning to his home district.

6.After involving in another violent confrontation with the local AL supporters during which the Applicant stabbed a AL member with a knife causing him serious injuries, and thereafter to avoid retaliation, the Applicant departed Bangladesh in April 2015 for Nepal and India for a week before returning to Bangladesh.   

7.However, as he still feared of retaliation from the AL people or the investigation of the police, the Applicant took shelter in his aunt’s place in Gazipur, and on 31 August 2015 he again departed 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 Non-refoulement Claim Form (“NCF”) on 3 September 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

8.By a Notice of Decision dated 15 October 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”).

9.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 low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for them to specifically target the Applicant given the fact that he was just an ordinary BNP supporter without holding any official post in the party or to have any further adverse interest in him after all these years since he left the country, that in any event 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 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 areas of the country away from his home district in large cities such as Dhaka where it would be difficult if not impossible for those local AL supporters to locate him.

10.On 25 October 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 2 July 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 Director’s decision.

11.In its decision the Board found serious inconsistencies discrepancies and contradictions in the Applicant’s evidence that it rejected his claims of political involvement in BNP or any conflicts with the AL people or that there was any adverse interest of the Bangladeshi police or authorities in him that caused him to leave his country to come to Hong Kong, and that it is not satisfied that he will face any real or substantial risk of being subjected to any harm for his claimed reasons upon his return to Bangladesh that it concluded that his non-refoulement protection failed on all applicable grounds.    

12.On 28 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 or in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, 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.

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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 91 – 104 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.  

15.The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if real 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.                

16.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.

17.Furthermore, the Applicant on 24 June 2023 wrote and requested to “close” his application for judicial review as it is now “ok” for him to return to his home country.

18.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 it is safe for him to return to his home country, I accordingly dismiss his leave application.

Dated the 2^nd day of August 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