Khan Ali Noor Alias Babla Ali Noor v. Torture Claims Appeal Board

HCAL 2688/2019

[2023] HKCFI 3247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2688 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 52-year-old national of Bangladesh who last arrived in Hong Kong on 10 July 2018 as a visitor with permission to remain as such up to 24 July 2018 when he did not depart and instead overstayed, and on 25 July 2018 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by the local members of the political party Awami League (“AL”) for investigating and exposing their wrongdoings. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Uttar Chartha, District Comilla, Bangladesh.  After leaving school he ran his own business, got married and raised a family with a daughter in his home village.

3.In 2000 he came to Hong Kong under a different identity for which he was subsequently arrested and repatriated to Bangladesh.

4.Upon returning to his home village, the Applicant continued to run his business, and in his spare time worked as a volunteer for the Bangladesh Human Rights Foundation (“BHRF”) investigating social injustice and wrongdoings in the local area of Comilla.

5.In early 2018 he investigated land grabbing activities by the local AL people stealing residential land and properties by force, and reported to BHRF which then made a complaint to the local police for investigation, but soon the Applicant started to receive telephone calls from the AL people threatening to kill him for exposing their wrongdoings, and after some AL people had come to his home looking for him and also threatened his wife and daughter, the Applicant fled to Chittagong to take shelter in a friend’s place before moving on to Dhaka.    

6.On 10 July 2018 the Applicant travelled to Hong Kong for his business, during which he was informed by his wife that those AL people had again come to their house looking to kill him, and so the Applicant was afraid to return to Bangladesh and therefore overstayed in Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 13 December 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 10 January 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found substantial grounds for believing that there will be any real risk of him being harmed by those local AL people upon his return to Bangladesh due to the absence of or low intensity and frequency of past ill-treatment from them, 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 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 or Dhaka where he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him.

9.On 18 January 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 30 May 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 4 September 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found multiple material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it doubted the credibility of his claim of having been involved in any human rights organization or investigation of any wrongdoings by local AL people or that he had received threats from them that caused him to leave his country to come to Hong Kong to seek protection, and that his credibility was further undermined by his previous use of a false identity to enter Hong Kong in 2000 that it concluded that he had fabricated his account of events that occurred in Bangladesh as incredible and wholly unreliable that his claim for non-refoulement protection failed on all applicable grounds.    

11.On 16 September 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 he rejects the decision as it disregarded the danger and threats that he faces in his home country but without providing any relevant details or particulars or elaboration as to how it did so.  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.

12.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.

13.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 20 – 56 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.  

14.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 the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of, 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.Moreover, the Applicant recently on 15 November 2023 filed an affirmation requesting to withdraw his application as his problem in his home country has been resolved and that he now wants to return to Bangladesh as soon as possible.   

17.In the premises, and 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 no more problem for him to return to his home country, I refuse to grant leave and accordingly dismiss his application.

Dated the 14^th day of December 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