Haque Sheikh Moksedul v. Torture Claims Appeal Board

HCAL 2896/2019

[2023] HKCFI 2955

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2896 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 62-year-old national of Bangladesh who arrived in Hong Kong on 21 June 2007 as a visitor with permission to remain as such up to 5 July 2007 during which he lodged a refugee application with the UNHCR and then a torture claim with the Immigration Department later taken as a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by the supporters of the political party Bangladesh Nationalist Party (“BNP”) as he supported their rival Awami League (“AL”) and/or by the Bangladesh government or authorities for taking part in some unauthorized rallies or public gatherings and/or fear of being deprived of proper medical and psychiatric health care and treatments for his traumatic mental problems caused by political conflicts and persecutions for years in his home country.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Hasnabad, Nababgonj, Dhaka, Bangladesh.  After leaving school he assisted in his family’s garment business, and followed his family’s tradition to support AL by joining their student wing even during his school years, and regularly attended their local meetings and rallies.

3.From 1979 to 1981 during the many violent conflicts between supporters of AL and BNP, the Applicant had been attacked and suffered injuries on numerous occasions, and later in 2006 when BNP were the ruling party, he and his fellow AL supporters were arrested and tortured by the police on many occasions that he suffered severe and long lasting physical and mental trauma.

4.In 2007 when he heard that the authorities had issued an arrest warrant against him and his fellow AL supporters for participating in mass rallies without authorization and in violation of the laws, he became fearful for his safety and therefore departed Bangladesh on 21 June 2007 for Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 8 September 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 15 February 2019 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no evidence of any real intention of the BNP people to seriously harm or kill him or to target him for any political reasons and in particularly after all these years since he left Bangladesh in 2007 that it is not accepted there would still be any adverse interest in him from BNP or the government or authorities when his supported party AL have since won the election and become the current ruling 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 Bangladesh has an effective legal and judicial system that it is not accepted that the Applicant would be deprived of due process or fair trial if indeed there is still any valid warrant for his arrest or that he would be deprived of any proper medical and mental health care and treatment for his claimed medical problems which include phobic attacks and hypertension according to his supporting medical evidence in his home country, while reasonable internal relocation alternatives are also available in Bangladesh with a large population of 159 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 Chittagong where it would be difficult if not impossible for any of his perceived enemies to locate him.

7.On 27 February 2019 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 10 May 2019 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer.  On 16 September 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s evidence of being an AL supporter and having political conflicts with BNP people during his youth but found no reliable evidence of any adverse interest in him from BNP or the government or authorities as well as inconsistencies and discrepancies in his evidence that it doubted his claim of fear of harm from his perceived enemies that caused him to flee his home country to come to Hong Kong for protection, and that in any event his supported AL has since 2009 been the country’s ruling party that it is not accepted that he would still face any risk of harm or persecution from the Bangladeshi government or authorities or that he would be deprived of any due process or fair trial upon his return to the country, and given the wealth of his family in Bangladesh that it is also not accepted that he would be deprived of the necessary or relevant medical and mental health care and treatments upon his return to his home country that his claim for non-refoulement protection failed on all applicable grounds.    

9.On 2 October 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) Procedural unfairness in that the Board’s decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(2) Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(3) Procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(4) Procedural unfairness in that the Board acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(5) That the Board in dismissing the Applicant’s appeal show no indication that the Adjudicator had interacted with the facts of the Applicant’s claim or conducted any analysis of his supporting documents or turned his mind to the grounds of appeal under consideration being the risk of violation of the Applicant’s right to life under BOR 2; and

(6) That the Adjudicator had relied on source of news not officially recognized or were simply hearsay or outdated considering the dramatic changes in the Applicant’s home country with the lack of credible source of information that resulted in groundless speculations in the decision.      

10.Those are however all just some vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant or necessary 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 was the decision unreasonable or irrational, or how the Adjudicator unlawfully fettered its discretion or act in a procedurally unfair manner or fail to conduct proper analysis of the supporting documents take into account of relevant COI or what source of news relied on by the Board that were not officially recognized or were outdated.  None of these assertions were elaborated or presented with any relevant or necessary particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable 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 for the thorough and detailed analysis and reasoning set out in paragraphs 68 – 120 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as submissions made on his behalf by his lawyer, 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 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.                

14.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.Moreover, the Applicant recently on 17 October 2023 filed an affirmation requesting to withdraw his application as he has no more problem in his home country that it is now safe for him to return 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 it is now safe for him to return to his home country, I accordingly dismiss his leave application.

Dated the 16^th day of November 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