Mondal Madab v. Torture Claims Appeal Board
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HCAL 31/2020 [2025] HKCFI 2904 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 31 OF 2020
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord 53 r 3) Following:
Order by Hon Fung J: The application for leave to apply for judicial review be dismissed. Observations for the Applicant: 1.The Applicant is a 40-year-old national of Bangladesh who entered Hong Kong illegally on 10 April 2016 and surrendered to the Immigration Department on 5 May 2016 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”) for refusing to pay them extortion money. He was subsequently released on recognizance pending the determination of his claim. 2.The Applicant was born and raised in a Hindu family in Poddar Para, Rautbhog, Tongibari, Munshiganj, Bangladesh. After leaving school he operated a hardware store and followed his father’s footstep and supported the political party Bangladesh Nationalist Party (“BNP”) regularly attended their local meetings and activities. 3.One night in mid-2003, some AL members twice came to his home and demanded the Applicant to pay protection money to continue to do business in the local area being a Hindu. On the first occasion when the Applicant refused to pay any money, those AL people punched and slapped him causing his face to swell with some minor scars and threatened to kill the Applicant, and on the second occasion the AL members attacked the Applicant with a long knife and he suffered a long gash on his arm which bled profusely and required stitching. The Applicant tried to ask for help from the local police and local BNP leaders but was turned down. 4.The Applicant then moved to his youngest maternal aunt’s place in Mandra Para village in Tongibari for about 2 to 3 weeks, but then the Applicant received over the phone a threat from an unknown AL member not to return to his store again, and shortly afterwards he found that his store was vandalised and destroyed. 5.Taking his mother’s advice, the Applicant relocated and stayed in Siliguri in India for 10 years and when his father was killed by AL members in 2014, he fled to India and Nepal but as he ran out of money he had to return to Bangladesh. Then, the Applicant took his mother’s advice to save his life and on 19 September 2015 he departed for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 11 December 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 6.By a Notice of Decision dated 30 January 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 assessed the level of risk of harm from those local AL people 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 other than to extort money from him, 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 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 a Hindu which has a relatively large community in Bangladesh compared to other religious minorities and 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. 8.On 11 February 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 17 December 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 23 December 2019, his appeal was dismissed by the Board which also confirmed the Director’s decision. 9.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it found his claim of fear of harm from some local AL supporters that caused him to leave Bangladesh to come to Hong Kong to seek protection completely untrue, that his credibility was jeopardised by his repeated confusion of the political party that has caused the claimed risk of harm to him and his family, and that it was satisfied that the Applicant does not face any real risk of harm from anyone upon his return to his home country that his claim for non-refoulement protection failed on all applicable grounds. 10.On 3 January 2020 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 his supporting affirmation of the same date to which he just attached a copy of the Board’s decision and the hearing bundle before the Board 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, I do not find any reasonably arguable basis for his intended challenge. 11.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. 12.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 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. 13.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 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. 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 20 February 2025 filed an affirmation requesting to withdraw his application as he wants to return to Bangladesh but without providing any further explanation as to what has happened to his claimed risk in his home country. 16.In the premises, as I am for the stated reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I refuse to grant leave and accordingly dismiss his application. Dated the 3rd day of July 2025
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
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Cases cited in this judgment