Babul Sardar v. Torture Claims Appeal Board

HCAL 2226/2019

[2024] HKCFI 766

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2226 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 46-year-old national of Bangladesh who had previously entered Hong Kong illegally in 2007 and raised a torture claim which was subsequently rejected and was eventually repatriated to Bangladesh in December 2017, but barely one year later on 1 January 2019 he sneaked back into Hong Kong and sought non-refoulement protection on the basis that if he returned to Bangladesh he would be harmed or killed by certain local supporters of the political party Bangladesh Nationalist Party (“BNP”) as he supported their rival Awami League (“AL”).  

2.The Applicant was born and raised in Village Uttar Baiksha, District Shariapur, Bangladesh. After leaving school he assisted in his family’s photo studio business in his home district, and supported AL regularly attended their local meetings and activities, during which he encountered some serious political disputes with several local BNP supporters in 2007 that caused him to leave the country in May 2007 for China, and from there he sneaked into Hong Kong and raised a torture claim, but after it was rejected he was repatriated back to Bangladesh in December 2017.

3.Upon returning to his home village, the Applicant in February 2018 started his own photo studio business by means of a loan from a local money-lender but unbeknown to him was a BNP supporter, and that he also resumed his political activities for AL, during which he and his fellow AL supporters continued to encounter violent conflicts with the local BNP supporters, and on one such confrontation he and his fellow AL supporters were severely beaten while his studio was also vandalized.

4.In October 2018 those local BNP supporters somehow found out that the Applicant had borrowed a loan from one of their members and hence instructed his creditor to demand immediate repayment of the loan from him, and when he was unable to do so, they then beat him and threatened to kill next time if he still failed to repay his loan.

5.Fearing for his life the Applicant then fled from his home village into hiding in Umruddin Madbor Kandi, and when those BNP supporters were unable to find him in his home village, they then grabbed his sister and beat her to force her to repay the loan, and thereafter his sister was so traumatized that she fled from her home for Dhaka.       

6.Due to continuing threats from those local BNP people, the Applicant was advised by his sister to leave the country to save his life, and so on 1 December 2018 he went to Dhaka, and on 3 December 2018 he departed Bangladesh 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 3 May 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.By a Notice of Decision dated 22 May 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 assessed the level of risk of harm from those local BNP 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 of any real intention of them to seriously harm or kill him other than to harass him which is common between supporters of rival political parties, 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 159 million people spread across a vast territory of more than 130,000 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 anyone to locate him.

9.On 31 May 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board did not find necessary to hold any oral hearing and proceeded to deal with the appeal in his absence and on paper, and on 1 August 2019 it dismissed his appeal and confirmed the Director’s decision.

10.In its decision the Board accepted the Applicant’s claim of fear of threats and harassments from certain local rival BNP supporters but found no real intention of them to seriously harm or kill him, and that in the absence of 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 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.    

11.On 6 August 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1) That the Board reached the decision wrongly in assessing his non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country;

(2) That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his claim without realizing that he was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3) That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing his claim;

(4) That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5) That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(6) That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required him to respond to questions that he was not in a position to offer any response;

(7) That the Adjudicator failed to take into account the nexus of political parties and official corruption which exist in the Applicant’s country making the persecution of the Applicant effectively persecution by the State; and

(8) That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.           

12.These are however all just some broad and vague assertions of the Applicant containing a few key words or phrases but without any relevant 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 unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were State Acquiescence or extra-judicial killings to the Applicant’s case or what evidence is there to indicate that the Applicant has ever been tortured by law enforcement agencies or politicians when on the factual basis of even his own case that it was common harassments between supporters of rival political parties only without any official involvement or political element. 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.

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 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 if real is a localized one 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.                

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 8 February 2024 filed an affirmation requesting to withdraw his application as his problem in Bangladesh has been resolved that it is now safe for him to return to his home country.

17.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 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