Case Document

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HCAL 3070/2019

[2024] HKCFI 2867

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3070 OF 2019

BETWEEN
	Hassan Md Mahbubul	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 44-year-old national of Bangladesh who entered Hong Kong illegally on 30 January 2016 and was arrested by police on the same day. 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 Habiganj, Bangladesh. After leaving school he ran his own cosmetic business in his home district, and supported BNP regularly attended their local meetings and activities, during which he and his fellow BNP supporters would from time to time come into violent conflicts with rival AL supporters.

3.One day in October 2012 while the Applicant was attending a local BNP meeting with his fellow supporters, they were attacked by a group of AL supporters with wooden sticks and iron rods that the Applicant suffered cuts and bruises on his back but he managed to flee from the scene to subsequently seek medical treatments for his injuries.

4.On another occasion in March 2013 while the Applicant was with some of his fellow BNP supporters on the way to attend another BNP meeting, they were ambushed by a group of AL supporters who threw bricks and stones as well as a bomb at them that some of his fellow BNP supporters were seriously injured, but the Applicant managed to make his escape from the scene with just minor injuries.

5.After that attack the Applicant became fearful for his life and fled to Kasba to take shelter in a friend’s place before moving on to Sylhet to stay in his youngest sister’s home until April 2014 when he returned to his home in Habiganj.

6.In June 2014 the Applicant married his wife and moved to her home district in Madhabpur where he raised a family with a daughter, and focused more on his cosmetic business without further incidents with the AL supporters until one night in October 2015 when a group of AL supporters came to his home and attacked him with a knife that he was stabbed in his stomach and was subsequently taken to a hospital in Dhaka where he was hospitalized for several days.

7.After his discharge from hospital the Applicant felt that it was no longer safe to remain in Bangladesh, and so in January 2016 he departed for China, and from there he later sneaked into Hong Kong, and after 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 4 May 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.By a Notice of Decision dated 31 May 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”).

9.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 risk of him being harmed or killed by those local AL supporters upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or any political reason for them to specifically target him for harm given that since his marriage in 2016 he had ceased being involved in politics, 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 Dhaka where it would be difficult if not impossible for anyone to locate him.

10.On 12 June 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 3 April 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 11 October 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.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 those local AL supporters that caused him to leave his country to come to Hong Kong to seek protection, that even if his alleged account of events prior to his departure were true that there was no reliable evidence of any real intention of those AL supporters to seriously harm or kill him or any political reason for them to specifically target him for harm since his marriage in 2016 when he focused on his family and his cosmetic business without any further involvement in politics, 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.

12.On 17 October 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 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 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 had significantly relied on source of news not officially recognized or were simply hearsays or outdated that the lack of credible source of information had resulted in groundless speculations that it is safe for the Applicant to return to his home country;

(6) That the Adjudicator rejected the Applicant’s claim without any proper inquiry and without carefully understanding his situation by touring his home country and asking those familiar with his case what real danger he would face if returned there; and

(7) That the hearing bundle for his appeal was given to him just a few days before his appeal hearing before the Board with the majority of the documents in English that there was insufficient time for him to prepare for him appeal due to his limited English skill and unrepresented that it was procedurally unfair on the part of the Board.

13.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 source of news relied on by the Board were not officially recognized or were simply hearsay or outdated, or how did the Adjudicator fail to make proper inquiry of his claim. 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.

14.As for the only ground which the Applicant had provided any details or particulars namely the late provision of the hearing bindle to him just a few days before his appeal hearing before the Board with the majority in English thereby giving him insufficient time to prepare for his appeal, the Applicant did not provide any documentary evidence to corroborate his assertions, nor did he raise any such issue at the hearing during which he was able to make his representations properly to the Board with the assistance of an interpreter. In the circumstances I do not find anything amiss with the provision of the hearing bundle to him, nor do I find this ground reasonably arguable for his intended challenge either.

15.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.

16.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 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.

17.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.

18.Moreover, the Applicant recently on 5 September 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.

19.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 22^nd day of October 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 22 October 2024 Hassan Md Mahbubul 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 22 October 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 12027/18/6/206/B1310 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1377/18 (formerly RBCZ/10776/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)