MANIEK ABUL KALAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 8/2021

[2023] HKCFI 276

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 8 of 2021

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

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 20 March 2007 and was arrested by police on 21 March 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim 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 some local supporters of the political party Bangladesh Nationalist Party (“BNP”) as he supported their rival Awami League (“AL”), 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 Bhushongacha, District Natore, Bangladesh. After leaving school he worked in his family business dealing in grains, and supported AL regularly attended their local meetings and rallies without holding any official post in the party.

3.  In about 2005 to maintain the cash flow for his family business, the Applicant borrowed a loan from a neighbor repayable within several months with interest. However, thereafter when he was unable to repay the loan and asked for further time to do so, his creditor made threats against him that he would hide to avoid his creditor.

4.  Meanwhile in 2006 while assisting in the election campaign fro AL, the Applicant and his fellow AL supporters were confronted by some local BNP supporters who proceeded to threaten and attack them with wooden sticks and other weapons, but the Applicant managed to escape from serious injuries.

5.  However, as the attacks from those local BNP supporters became more frequent, and when his creditor was also pressing him with threats for repayment of his loan, the Applicant in September 2006 fled to Rajshahi District to take shelter in his uncle’s home, and on 1 February 2007 he departed Bangladesh for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police his raised his torture claim, and after it was rejected by the Immigration Department, he then sough non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 31 October 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 24 December 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable 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”).

7.  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 and substantial risk of him being harmed or killed by his creditor or by those local BNP supporters upon his return to Bangladesh 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, that his problem with his creditor was a private monetary dispute between them without any official involvement while there is no reason for those BNP supporters to specifically target him given that he was just an ordinary AL 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 159 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 part 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.

8.  On 4 January 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 October 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 18 December 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his creditor and those local BNP supporters that caused him to flee his home country for Hong Kong, and that in any event in the absence of any official involvement that state/police protection would be available to the Applicant upon his return to Bangladesh as well as reasonable internal relocation for him to move safely to other part 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.

10.  On 5 January 2021 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 merely stated that he does not agree with the decision 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 fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim 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.

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.  Furthermore, the Applicant recently on 18 October 2022 filed an affirmation to withdraw his application as he no longer has any problem in his home country that he now wants to go home.

15.  In the premises, as I am for the reasons given 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 for him to return to his home country, I accordingly dismiss his leave application.

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