Munna v. Torture Claims Appeal Board

HCAL 120/2018

[2024] HKCFI 3225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 120 OF 2018

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 50-year-old national of Bangladesh who entered Hong Kong illegally on 30 May 2014 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”) and/or the police due to false charges made by those AL people against him. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Chandpur, District Kishoregonj, Bangladesh. After leaving school he worked on his own wholesale and retail business in diesel and fertilizer products in his home district, and supported BNP regularly attended their local meetings and activities.

3.However, due to internal conflicts within the local branch of BNP between the Applicant and some of his fellow members, and as a result he heard that some false charges had been made against him to the police, the Applicant in April 2005 departed Bangladesh for Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised a torture claim which he later in August 2012 withdrew without any decision, and was repatriated to Bangladesh in October 2012.

4.Upon returning to Bangladesh he rejoined BNP as an ordinary supporter, during which he and his fellow supporters would frequently come into conflicts with the local AL supporters who had made threats against him, and when he later heard that false charges had also been made to the police against him by those AL people, the Applicant fled to Dhaka, and on 22 May 2014 he again departed Bangladesh 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 7 March 2016 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any scheduled screening interview before an immigration officer due to alleged medical issues.             

5.By a Notice of Decision dated 10 August 2016 and a Notice of Further Decision dated 2 August 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”).

6.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 or the police upon his return to Bangladesh as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of those AL supporters to seriously harm or kill him or any political reason for them to still have any adverse interest in him after all these years since he left the country, nor is there any evidence of any adverse interest of the police in him given the fact that he was able to leave and re-enter the country without any problem, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant from any harm from those AL people 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 168 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 he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him.

7.On 24 August 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which he attended an oral hearing on 4 December 2017 before the Board during which he did not give any evidence in support of his claim and instead confirmed that he no longer has any concern returning to Bangladesh but wanted to remain in Hong Kong to instead deal with his compensation claim against his employer over his injury suffered during his employment here.  As a result his appeal was dismissed by the Board on 17 January 2018 upon his said confirmation of no more concern returning to Bangladesh, and that the Board also confirmed the Director’s decisions.

8.However, barely more than 1 week later on 25 January 2018 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, and in his supporting affirmation of the same date he just attached a copy of the decision and repeated his claim as before as well as citing various legal principles applicable to non-refoulement protection but without putting forth 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, and given his confirmation to the Board of no more concern returning to Bangladesh but that he just wanted to remain in Hong Kong so as to pursue another court case for employee compensation, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision at all.

9.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.

10.In the Applicant’s case, the Board rejected his claim essentially on his own confirmation of no more concern returning to his home country as set out in its decision with the benefit of hearing the Applicant in his own words and confirmation at his appeal hearing, 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 decision of the Board.

11.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 even 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.                

12.In the premises, and 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.

13.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given the recent confirmation of the Immigration Department of the Applicant’s subsequent departure of Hong Kong to return to Bangladesh, I refuse to grant leave and accordingly dismiss his application.

14.Given the Applicant’s departure and no longer has any address in Hong Kong, I direct that a copy of this decision together with the sealed order be sent to the Immigration Department with a request that they be forwarded to the Applicant in Pakistan.

Dated the 19^th day of November 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