Case Document

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HCAL 1122/2021

[2024] HKCFI 2465

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1122 OF 2021

BETWEEN
	Bepari Shahin	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 41-year-old national of Bangladesh who entered Hong Kong illegally on 1 January 2019 and surrendered to the Immigration Department on the following 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”) as he supported their rival Bangladesh Nationalist Party (“BNP”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Hariasha, Jajira, Shariatpur, Bangladesh. After leaving school he worked as a pipes maker in his home district, and supported BNP regularly attended their local meetings and activities without holding any official post in the party.

3.One day in December 2018 he participated with his fellow supporters in a BNP rally in his home district, and several days later a group of local AL supporters came to his home to demand that he should stop supporting BNP, and when he refused, they attacked him with bamboo sticks and vandalized his home.

4.After the attack the Applicant fled to West Shanetcho to take shelter in a friend’s place, and later went to Dhaka to seek medical treatments to the injuries sustained in the attack.

5.Thereafter and on his parents’ advice not to return to his home district to avoid further attacks from the local AL supporters and to save his life by leaving the country, and so the Applicant subsequently 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 6 May 2019 and attended screening interview before the Immigration Department with legal representation.

6.By a Notice of Decision dated 30 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”).

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 his perceived fear of being harmed or killed by those local AL supporters upon his return to Bangladesh will be real and substantial 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 as rival supporters which are common in Bangladesh or of any political reason for them to specifically target him given that he was just an ordinary BNP supporter without any official post in the party, and 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 140,000 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 or Khulna where it would be difficult if not impossible for anyone to locate him.

8.On 11 June 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 28 May 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 21 July 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 between him and certain local AL supporters that led to him being attacked by them in one incident after having participated in a local rally organized by BNP but found no evidence of any real intention of them to seriously harm or kill him or any political reason for them to specifically target him given that he was just a low level member of BNP, and 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 that his claim for non-refoulement protection failed on all applicable grounds.

10.On 10 August 2021 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 was in breach of procedural fairness in unlawfully fettering its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

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

(3) That the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4) That the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5) That the Board failed to give the Applicant a fair opportunity to put forward his submissions during the hearing of his appeal; and

(6) That the Board had significantly relied on source of news not officially recognized or were simply hearsays or outdated with the lack of credible source of information that resulted in groundless speculations that it is safe for the Applicant to return to his home country.

11.These are however all just bare 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 was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to give the Applicant a fair opportunity to make his submissions to the Board when the record shows that he was able to make his representations and submissions to the Board during his appeal hearing without problem and with the assistance of an interpreter, or what source of news relied on by the Board were not officially recognized or were hearsays or outdated. 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.

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 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.

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 16 July 2024 filed an affirmation requesting to withdraw his application as all his problem in his home country are now “finished” that he wants to return to Bangladesh.

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 for him to return to his home country, I accordingly dismiss his leave application.

Dated the 17^th day of September 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 17 September 2024 Bepari Shahin 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 17 September 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 15997/19/6/37/B2045 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 309/18 (formerly RBCZ 10178/19)(T2I122) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)