Haq Md Samecul v. Torture Claims Appeal Board

HCAL 609/2020

[2024] HKCFI 769

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 609 OF 2020

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 44-year-old national of Bangladesh who entered Hong Kong illegally on 2 January 2019 and surrendered to the Immigration Department on the same day when he raised a non-refoulement claim for protection 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”) for refusing to pay extortion money and/or by 3 brothers in his home village over their land dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Daimuddin, Hajir Kandi, Jajira, Shariatpur, Bangladesh. After leaving school he went to Singapore to work as a construction worker until 2007 when he returned to Bangladesh to run a grocery store in his home village to make his living.

3.In about 2015 some local AL supporters started to come to his store to demand for extortion money, and that the Applicant would always try pay whatever he could afford to avoid their harassments and intimidation.

4.However, those AL people later became greedy and started to demand for bigger sums of extortion money which the Applicant could no longer afford, for which they then threatened to kill him, the Applicant had no choice but to close down his store and cease his business, whereupon the extortion demands soon stopped.

5.Shortly thereafter the Applicant purchased a piece of land from 3 brothers in his home village on which he planned to build a house for his family, but after receiving his purchase money the 3 brothers failed to deliver possession of the land or its title to the Applicant, for which the Applicant took the dispute to the police and the court but the case dragged on for 3 years without result, and when the Applicant and his family continued to pressed the 3 brothers for possession of the land, the 3 brothers refused and instead made threats against the Applicant.          

6.One night the 3 brothers together with their men came to the Applicant’s home looking for him, and when they could not find him in the house, they then vandalized his house and stole his properties, and warned his family that next time they would kill him.

7.Fearing for his life the Applicant fled to Dhaka, and on 23 December 2018 he departed Bangladesh for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 30 May 2019 and attended screening interview before the Immigration Department with legal representation.             

8.By a Notice of Decision dated 25 June 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”).

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 people or the 3 brothers from his home village 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 of any real intention of those local AL people to harm him after he ceased his business or of the 3 brothers to do so other than to deter him from demanding for possession of the land in dispute, that in any event these were private monetary or land dispute between them without 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 148 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.

10.On 8 July 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 19 November 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 12 March 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.In its decision the Board found material inconsistencies discrepancies and implausibility in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from those local AL people or the 3 brothers from his home village that caused him to leave his country to come to Hong Kong to seek protection, that it considered his claims as incredible, unreliable and implausible that rejected the credibility of his claim, and that in any event even if his claimed risks were real that they arose from some private disputes between them without any official involvement that state or police protection would be available to the Applicant upon his return to Bangladesh as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

12.On 14 April 2020 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 had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

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

(3) 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;

(4) That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal; and

(5) That the Board had significantly relied on source of news not officially recognized or were simply hearsay in wrongly assessing internal relocation that the Applicant will face hardship if he is to return to his home country.         

13.These are all just some broad and vague 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 did the Board unlawfully fetter its discretion or act in a procedurally unfair manner or that the decision was unreasonable or irrational, or which source of news or COI relied on by the Board were not officially recognized or were hearsay in its assessment of the availability of internal relocation to the Applicant. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

14.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.

15.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim even if real are localized ones and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, 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.Moreover, the Applicant recently on 29 February 2024 in writing requested to withdraw his application as his problems in Bangladesh have been resolved that he now wants 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 of no more problem for him to return to his home country, I accordingly dismiss his leave application and direct that its scheduled hearing be vacated.

Dated the 14^th day of March 2024

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