Shekh Mohammad Ali v. Torture Claims Appeal Board
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HCAL 2354/2019 [2024] HKCFI 2290 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2354 OF 2019
Application for Leave to Apply for Judicial Review 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 47-year-old national of Bangladesh who entered Hong Kong illegally on 10 January 2015 and was arrested by police on 11 January 2015. 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 Chuadanga District, Khulna, Bangladesh. After leaving school he ran a grocery store in his home district, got married and raised a family with a son, and supported JeI regularly attended their local meetings and activities without holding any official post in the party. 3.One day in 2012 or 2013 some local AL supporters came to his store and demanded him not to participate in JeI’s political activities, but when he refused, they then made threats against him and vandalized his store before they left. 4.2 months later in May 2013 those AL supporters came to the Applicant’s home and assaulted him with knives and cut him in his left arm, but he managed to make his escape from the scene to seek medical treatments in a clinic. 5.After the assault the Applicant became fearful for his life and fled from the country for India in August 2013 before returning to Bangladesh shortly thereafter where he stayed in Dhaka, and in December 2013 he again departed Bangladesh for China where he stayed until March 2014 when he returned to Dhaka. 6.As he still felt it was not safe to remain in Bangladesh, he therefore departed Bangladesh again on 1 January 2015 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 1 November 2018 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 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”). 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 AL 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 and intimidate him which was common between rival political parties in Bangladesh, nor is there any political reason for the AL people to specifically target him given that he was just an ordinary JeI supporter without any official 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 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 he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him. 9.On 6 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 18 April 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 9 August 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision. 10.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of being a JeI supporter or had been involved in their political activities other than at most just an ordinary supporter without any official post that it is not accepted that he had faced any threats from the AL people or for them to have any adverse interest in him for any political reason that caused him to flee his country to come to Hong Kong to seek protection, that in any event 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 alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds. 11.On 15 August 2019 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 repeated his claim as before and with some bare vague and wholly irrelevant assertions but without putting forward 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. 12.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. 13.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 32 – 69 of 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. 14.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim even 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 7 August 2024 filed an affirmation requesting to withdraw his application as he has no more problem returning 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 of no more problem for him to return to his home country, I accordingly dismiss his leave application. Dated the 5th day of September 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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