Sarwar Sajib v. Torture Claims Appeal Board

HCAL 1754/2019

[2023] HKCFI 3319

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1754 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 37-year-old national of Bangladesh who entered Hong Kong illegally on 11 February 2017 and one month later on 13 March 2017 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 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 Munshihanj, Dhaka, Bangladesh. After leaving school he ran his own shoes business in his home district, and supported BNP by regularly attending their local meetings and activities.

3.In 2008 AL came into power and their local supporters started to harass and threaten BNP supporters in his home district, and one day in 2009 while on his way home, the Applicant was attacked by a group of AL supporters that he suffered severe injuries and was subsequently taken to the local hospital for medical treatments.

4.After the incident the Applicant became concerned for his own safety and moved to Dhaka City to stay with his uncle, but during the next 7 years whenever he visited his home district he would face the same threats and attacks from those local AL supporters, and on the last occasion in September 2016 when he visited his home district, he was attacked by those AL supporters with iron rods and hockey sticks until his neighbours intervened, and that he was thereafter taken to the hospital for medical treatments where he was kept for several days.

5.Upon his discharge from hospital he then returned to his uncle’s place, but shortly thereafter he started to also face threats and attacks from the AL people there that he decided it was no longer safe to remain in Pakistan, and so in January 2017 he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 23 October 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 19 November 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 risk of him being harmed or killed by those local AL supporters upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him or any reason for them to specifically target him for harm given that he was just an ordinary BNP supporter without holding any official or important post in the party, 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 Chittagong where it would be difficult if not impossible for anyone to locate him.

8.On 3 December 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 13 March 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 13 June 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it considered him to be a patently and persistently dishonest witness that it rejected his claim of fear of harm from the AL people that caused him to leave his country to come to Hong Kong for protection, and concluded that he had failed to establish that he has any well-founded fear of being subjected to torture or ill-treatment or persecution or that he would face any genuine and substantial risk of such harm upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.

10.On 25 June 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 repeated his claim as before and put forward the following grounds for his intended challenge:

(1)  That the Adjudicator was basically wrong in assessing his non-refoulement claim by just relying on the evidence and documents submitted by the Applicant without actually visiting Bangladesh to investigate his claimed problem in his home country; and

(2)  That the hearing bundle for his appeal was provided only 7 days before his appeal hearing before the Board with the majority of documents in English which he has difficulty reading that it was procedurally unfair to him.

11.Ground (1) of the Applicant is clearly not arguable for his intended challenge as there is simply no legal or legislative basis to require the Director or the Board to actually visit the risk state or country of origin to conduct any investigation of a non-refoulement claim, while the burden of proof is clearly on the claimant, and in the Applicant’s case, I am satisfied that both the Director and the Board had conducted proper enquires into current and relevant COI as regard his home country in their assessment and determination of his claim that there is simply no merits or justification in this complaint of the Applicant.

12.As for his complaint under Ground (2) of being provided with the hearing bundle only 7 days before his appeal to the Board, it is clear from the covering letter dated 8 February 2019 from the Director in the hearing bundle that it was provided to the Applicant on the same day of 8 February 2019 while his appeal hearing was more than one month away on 13 March 2019 which was clearly not only 7 days as alleged by the Applicant and which would have given him more than sufficient time to prepare for his appeal before the Board notwithstanding his deficiency in English, and that he was assisted by an interpreter in his appeal hearing before the Board during which he was clearly able to present his case properly without any problem, and that he never raised any issue over the provision of the hearing bundle to the Board. As such there is simply no justification in this complaint of the Applicant at all, and that it is also not reasonably arguable for his intended challenge either.

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 as to his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 58 – 77 of its decision and with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or judicial 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 findings of the Board.

15.Furthermore, 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.

16.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.

17.Moreover, the Applicant recently on 20 November 2023 filed an affirmation requesting to withdraw his application as all his problems in his home country have been resolved that he now wants to return to Bangladesh as soon as possible.

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 of no more problem for him to return to his home country, I accordingly dismiss his leave application.

Dated the 28^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