Md Sabuj Munsi v. Torture Claims Appeal Board
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HCAL 189/2020 [2024] HKCFI 1736 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 189 OF 2020
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord 53 r 3) Following:
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 36-year-old national of Bangladesh who arrived in Hong Kong on 30 November 2009 as a visitor with permission to remain as such up to 7 December 2009 when he did not depart and instead overstayed, and was arrested by police on 25 December 2009. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by certain local landowner over his land dispute with the Applicant’s father in his home village, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim. 2.The Applicant was born and raised in Village Akon Kandi, Union Nashason, District Shariatpur, Bangladesh. After leaving school he assisted in his father’s farming on his father’s farmland in his home village. 3.In about mid-2009 a local wealthy and influencer land owner Delawar demanded for the transfer of the farmland of the Applicant’s father, and when the Applicant’s father refused, Delawar one day came with his brothers to threaten and assault the Applicant’s father who suffered injuries to his head that he was hospitalized for a week. 4.Upon his discharge from the hospital, the Applicant accompanied his father to make a complaint to the local police, whereupon Delawar became furious and made false counter claim to the police against the Applicant, and one day in November 2009 some of Delawar’s men came to the Applicant’s home looking for him, whereupon the Applicant fled to Chittagong, but later when he saw some of Delawar’s men approaching him, the Applicant then fled to Dhaka, and on his father’s advice the Applicant departed Bangladesh on 30 November 2009 for Hong Kong where he subsequently overstayed, and upon his arrest by the police he raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 14 September 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 5.By a Notice of Decision dated 23 October 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 assessed the level of risk of harm from the local landowner Delawar and followers 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 or reason of them to seriously harm or kill him over Delarwar’s land dispute with his father given the fact as conceded by the Applicant that the land has all these years still remained in his father’s possession without any further incidents since the Applicant left the country in 2009, that in any event it was a private land dispute between Delawar and the Applicant’s father only 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 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 Dhaka where it would be difficult if not impossible for anyone to locate him. 7.On 1 November 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 4 December 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 9 January 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision. 8.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from Delawar that caused him to leave Bangladesh to come to Hong Kong to seek protection, that there was no reliable evidence of any real intention of Delawar to seriously harm or kill him as his father had remained the owner of those farmland without further incidents since he left the country years ago, and that even if such risk were real that it arose from a private land dispute between his father and Delawar only without any official involvement that state or police protection would be available to the Applicant upon his return to Bangladesh if resorted to 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. 9.On 17 January 2020 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 to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge. 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. 10.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. 11.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. 12.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. 13.Moreover, the Applicant recently on 5 June 2024 filed an affirmation requesting to withdraw his application as he no longer has any problem returning to his home country. 14.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 9th day of July 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
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