Abdin Joynal v. Torture Claims Appeal Board
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HCAL 2713/2019 [2025] HKCFI 4321 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2713 OF 2019
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord 53 r 3) Following:
Order by Deputy High Court Judge Bruno Chan: Leave to apply for judicial review be refused. Observations for the Applicant: 1.The Applicant is a 48-year-old national of Bangladesh who arrived in Hong Kong on 5 December 2013 as a visitor with permission to remain as such up to 12 December 2013 when he did not depart and instead overstayed, and subsequently raised a non-refoulement claim for protection to the Immigration Department 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 Jamaat-e-Islami Party (“JeI”). He was subsequently released on recognizance pending the determination of his claim. 2.The Applicant was born and raised in Nabi Nagar, Brahmanbaria, Bangladesh. After leaving school he worked as a construction foreman, got married and raised a family with 5 children in his home district, and followed his family’s tradition to support JeI regularly attended their local meetings and activities without holding any official post in the party. 3.However, after AL won the 2008 general election and became the ruling party, some of their supporters in the Applicant’s home district started to harass and intimidate the local JeI supporters including the Applicant’s family members. 4.To avoid such daily harassments, the Applicant in 2010 moved to Dhaka to stay with a friend, returning home only from time to time to visit his family, but during one of his such visits, he witnessed an attack of his brother by a group of local AL supporters that his brother suffered injuries to his head and was taken to the hospital for medical treatments. 5.After witnessing the incident the Applicant became fearful for his own safety and rushed back to Dhaka, and later when he was told by his wife that those local AL supporters had come looking for him, the Applicant felt it was no longer safe to remain in Bangladesh, and so on 5 December 2013 he departed for Hong Kong when he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 26 September 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 29 October 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”). 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 supporters 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 them to seriously harm or kill him other than to harass or intimidate him which were common between supporters of rival political parties, nor is there any evidence or political reason for them to specifically target the Applicant given that he was just an ordinary JeI supporter without any official post in the party, 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 130,000 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 or Dhaka where he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him. 8.On 9 November 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 2 July 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 12 September 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision. 9.In its decision[1] the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it did not consider him a witness of truth that it was not satisfied that he had told the Board the truth in relation to the critical elements of his claim including his assertions of being a JeI supporter given his total lack of even the basic knowledge of anything about JeI or politics in general in Bangladesh that it did not accept that he or his brother had ever been threatened or attacked by any AL supporter as claimed that it rejected his claim of fear of harm from any AL supporters that caused him to leave his country to come to Hong Kong to seek protection, and concluded that there is no evidence that the Applicant will face any risk of being harmed by anyone for any reason upon his return to Bangladesh that his claim for non‑refoulement protection failed on all applicable grounds. 10.On 17 September 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 his supporting affirmation of the same date in which he just stated that he rejects the decision as it disregarded the danger and threats that he faces in his home country but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of 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 of the Board’s decision. 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 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. 14.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. 15.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application. Dated the 23rd day of September 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 |
Cases cited in this judgment