Sheikh Abdul Malek v. Torture Claims Appeal Board

HCAL 2225/2019

[2024] HKCFI 2611

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2225 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 47-year-old national of Bangladesh who entered Hong Kong illegally on 4 September 2014 and was arrested by police on 6 September 2014. 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 Bangladesh Nationalist Party (“BNP”).  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Dicri Char Chadpur, Khankhanapur, Rajbari Sadar, Rajbari, Bangladesh. After leaving school he worked as a farmer and a cleaner, got married and raised a family with 3 children in his home district, and supported BNP regularly attended their local meetings and activities.

3.One day in early 2013 a fight broke out between supporters of rivals AL and BNP in his home village in which he was also involved, and was subsequently arrested by police and sent to prison for 6 weeks.

4.One evening shortly after his release from prison, the Applicant heard that his brother was being attacked by some AL supporters and went to his brother’s help when he was also attacked by those AL supporters with wooden sticks that both he and his brother sustained injuries and were subsequently taken to the hospital for medical treatments.

5.Those AL supporters however thereafter made false charges against the Applicant and his brother that upon their return home from hospital that police arrived to look for them, but the Applicant managed to make his escape and fled to Faridpur District to hide in his aunt’s place, and on 18 July 2014 he departed Bangladesh for China, and from there he later sneaked in 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 27 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.While released on recognizance pending the determination of his claim, the Applicant was again arrested by police on 14 August 2018 for undertaking illegal employment for which he was subsequently convicted and sentenced to prison for 15 months.               

7.By a Notice of Decision dated 6 December 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 the local AL members 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 or of any political reason for them to specifically target him for harm 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 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 or Chittagong where it would be difficult if not impossible for anyone to locate him.

9.On 17 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 4 July 2019 before the Board during which he declined to give any further evidence or to answer any questions raised by the Adjudicator after having confirmed his claim based on the materials given earlier to the Director and contained in the hearing bundle before the Board despite being advised by the Adjudicator that it was necessary for him to explain and clarify various issues raised by the Adjudicator during the hearing.  On 24 July 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 claim which he failed to answer explain or clarify during his appeal hearing that it doubted his claim of fear of harm from those local AL supporters or the authorities that caused him to flee his country to come to Hong Kong to seek protection, that even if such claim were true that there was no reliable evidence of any real intention of those local AL supporters to seriously harm or kill him or to have any political reason to specifically target him for harm or to have any adverse interest in him given that he was just an ordinary BNP supporter without any official post in the party, nor was there any evidence of any interest that the police might have in him given that he was able to leave the country without any problem, 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 for him to move safely to other part 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 the 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 as he was tortured at the behest of the state law enforcement and politicians that the state would be rendered liable to him by cause of the state and 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 ruled otherwise;

(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 his home country making the persecution effectively prosecution 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 bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or 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 suggest 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 just some local conflicts between supporters of rival political parties within his home district only. 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 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 29 July 2024 in writing requested to withdraw his application as the problem which he had in his home country has been solved that he now wants to return to Bangladesh.

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

Dated the 26^th 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