Case Document

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HCAL 240/2021

[2024] HKCFI 2124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 240 OF 2021

BETWEEN
	Sarif	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 23 September 2013 and was arrested by police on 25 September 2013. 　After he was referred to the Immigration Department for investigation, 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”) as he supported their rival Jamaat-e-Islami (“JeI”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Harashpur, Comilla Sadar Dakshin Comilla, Bangladesh. While in secondary school he started to support JeI by joining its student wing Bangladesh Islami Chhatra Shibir (“BICS”) in his school regularly attended its meetings and activities, during which he was frequently approached by student members of AL’s student wing Chatra League to join their party.

3.One day in 2010 the Applicant was again approached by a group of student members of Chatra League to join their party, and when he refused, they then made threats against him.

4.One day in late 2012 while he was on his way home, the Applicant was struck from behind in the head that he lost consciousness, and was subsequently taken by passers-by to a clinic for medical treatments.

5.Upon returning home, the Applicant told his parents that he suspected that he was attacked by the Chatra League people, whereupon his parents sent him to Choddogram to take shelter in his aunt’s home, and later he moved to his uncle’s place in Dhaka, and with his uncle’s assistance he subsequently departed Bangladesh on 29 March 2013 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 17 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 11 April 2017 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 and substantial risk of him being harmed or ill-treated by those local student members of AL 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 him given that they were just students at that time that there is no political reasons for the AL people to specifically target him, 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 156 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 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 19 April 2017 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 11 October 2019 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submission made by his lawyer on his behalf. 　On 11 February 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted the Applicant’s claim of political disputes with certain members or supporters of AL’s student wing while in secondary school but found no evidence of any real risk that he had faced as a members of JeI’s student wing while at school or thereafter of any political reason for the AL people to have any adverse interest in him that it found that he has failed to establish any real risk of being harmed by anyone for any political reason upon his return to Bangladesh that it concluded that his claim for non-refoulement protection failed on all applicable grounds.

10.On 26 February 2021 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 his supporting affirmation of the same date in which he just asserted that the decision to refuse his claim was unreasonable as the Board did not consider all the matters but without providing any necessary or 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.

11.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.

12.In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in 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.

13.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 agreed and 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.

14.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.

15.Moreover, the Applicant recently on 7 June 2024 filed an affirmation requesting to withdraw his application as he has no more problem returning to his home country.

16.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 returning to his home country, I accordingly dismiss his leave application.

Dated the 20^th day of August 2024

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 20 August 2024 Sarif Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 20 August 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 6896/17/4/172/B809 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3208/16 (Formerly RBCZ 3000237/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)