Case Document

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HCAL 3442/2019

[2024] HKCFI 3385

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 3442 OF 2019

BETWEEN
	Mohammad Sikder alias Zamal Raju Sha alias Sha Zamal Raju	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

cconsideration 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 58-year-old national of Bangladesh who had since 1996 on various occasions entered Hong Kong either illegally or on faked travel documents of different identities and was repatriated on each occasion upon his subsequent arrests by police, but in June 2008 he again sneaked back into Hong Kong, for which he was arrested by police on 12 June 2008 and was subsequently convicted and sent to prison for 19 months, during which he raised a torture claim to the Immigration Department on the basis that if he returned to Bangladesh he would be harmed or killed by his creditor over his unpaid debts and/or by certain local supporters of the political party Awami League (“AL”) as he supported their rival Bangladesh Nationalist Party (“BNP”), and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Tomodordy, District Narayangonj, Bangladesh. After leaving school he worked as a mobile phone salesman in his home district, and supported BNP regularly attended their local meetings and activities, during which he and his fellow BNP supporters often came into violent conflicts with the AL supporters, and as a result he often faced threats and harassments from them.

3.In 2007 in order to avoid further threats from those AL supporters, the Applicant decided to focus on making his livelihood by opening a food processing business with the help of a loan from a local money-lending company which unbeknown to him was in fact controlled by the AL people, and later when he refused their invitation to join their party, his creditor then demanded for the repayment of his loan, and when he was unable to do so, his creditor then sent men to make threats against him and to vandalize his store.

4.Eventually the Applicant was unable to put up with those threats and harassments and departed Bangladesh on 31 May 2008 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his torture claim, and after it was rejected he then sought non-refoulement protection on the same basis, for which he completed a Supplementary Claim Form (“SCF”) on 27 June 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 31 July 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining grounds other than torture risk including 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 his creditor and/or 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 that the Applicant had been specifically targeted by the AL people for harm while his problem with his creditor was a private monetary dispute between them without 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 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 Chittagong where it would be difficult if not impossible for anyone to locate him.

7.On 9 September 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 12 September 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 28 October 2019, his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claimed fears that caused him to leave his country again to come to Hong Kong to seek protection, that his credibility was further undermined by his past poor records of illegal entries into Hong Kong that it considered the Applicant as not a witness of truth with absolutely no knowledge of the political policies of BNP at all that it rejected entirely his claim of any political involvements in Bangladesh, and concluded that he had fabricated his account of events occurred prior to his departure of his country just to create a basis upon which to apply for non-refoulement protection in Hong Kong that that his non-refoulement claim failed on all applicable grounds.

9.On 20 November 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 in his supporting affirmation of the same date in which he just repeated his claim as before but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. 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.

10.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: ReLakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst vDirector of Immigration [2018] HKCA 524.

11.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 68 – 92 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.

12.Furthermore, the fact is that it has also been established by the Director in his decision that the risks of harm in the Applicant’s claim even if real are localized ones and that it is not unreasonable or unsafe for him to relocate to other areas 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 vJenkins & Anor [2013] 1 HKC 526.

13.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.

14.Moreover, the Applicant recently on 17 September 2024 filed an affirmation requesting to withdraw his application as his problem in his home country is “finished” and that he now wants to return to Bangladesh.

15.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 given his latest confirmation of no problem returning to his home country, I accordingly dismiss his leave application.

Dated the 3^rd day of December 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 3 December 2024 Mohammad Sikder alias Zamal Raju Sha alias Sha Zamal Raju 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 3 December 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 12909/18/8/179/B1457 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2157/18 (Formerly RBCZ/2002398/14)(T3S112) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)