MD TONI v. TORTURE CLAIMS APPEAL BOARD

HCAL 810/2020

[2024] HKCFI 618

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 810 OF 2020

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;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 51-year-old national of Bangladesh who last arrived in Hong Kong on 26 April 2005 as a visitor with permission to remain as such up to 30 April 2005 when he did not depart and instead overstayed, and was arrested by police some 6 ½ years later on 20 February 2012. 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 certain local supporters of the political party Awami League (“AL”) as he supported their rival Bangladesh Nationalist Party (“BNP”) and/or by his former girlfriend’s family who objected to their relationship.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Nimbari, P.S. Kasba, District Brahmanbaria, Bangladesh.  After leaving school he followed his family’s tradition to support BNP regularly attended their local meetings and activities.

3.  At about the same time the Applicant also dated a girlfriend from neighbouring village, but in 2004 when her family found out about their relationship which they did not approve, her parents decided to marry off his girlfriend to another man, and made some false claim against the Applicant to the police which his father subsequently able to resolve by making bribes to the police, but his girlfriend’s family were still hostile towards the Applicant that he feared of further threats from them.

4.  One day in June 2004 the Applicant was approached by a local AL leader and was offered a large sum of money to assassinate one of BNP’s leaders, and when he refused, the AL leader was displeased and warned him not to reveal the plot to anyone.

5.  However, thereafter the Applicant disclosed the threats to the BNP leader, and as a result the BNP leader fled from the home village into hiding, for which the AL leader became furious, and on one occasion sent men to attack the Applicant until it was intervened by other villagers, and before those men left, they warned that next time they would kill the Applicant.   

6.  Due to the threats from the AL people and his former girlfriend’s family, the Applicant fled to Chittagong, but when he later heard that the AL people were looking for him everywhere, he felt it was no longer safe to remain in Bangladesh, and so in March 2005 he departed for China, and from there he later travelled to Hong Kong where he subsequently overstayed, and upon his arrest by the police more than 6 years later in 2012, he raised his torture claim to the Immigration Department, and after it was rejected, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 30 January 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

7.  By a Notice of Decision dated 27 February 2019 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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of him being harmed or killed by the local AL leader or his former girlfriend’s family 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 or that they would still have any adverse interest in him after all these years since 2005 when he left the country, 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 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 he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him.

9.  On 11 March 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 11 November 2019 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer.  On 21 April 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s claim that it doubted his claim of fear of harm from the local AL leader or his former girlfriend’s family that caused him to leave his home country to come to Hong Kong to seek protection, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until more than 6 years later and only after his arrest by the police, and that in any event even if such risks were real that in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Bangladesh to negate any such risks that his claim for non-refoulement protection failed on all applicable grounds.    

11.  On 4 May 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

 (1)     Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

 (2)     Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

 (3)     Procedural unfairness in that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

 (4)     Procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

 (5)     That the Board had significantly relied on the source of news not officially recognized or were simply hearsay or outdated which led to a lack of credible source of information that resulted in its groundless speculation that it would be safe for the Applicant to return to his home country; and

 (6)     That the Board reached the wrong decision in assessing the Applicant’s claim without any proper inquiry or careful understanding of his situation.

12.  These are however all just bare and vague assertions of the Applicant without any relevant or necessary details or particulars or elaborations as to how they would apply to his case or how did the Board unlawfully fetter its discretion or that the Adjudicator act in a procedurally unfair manner, or which source of news relied on by the Board were not officially recognized or were outdated, or how did the Board fail to conduct proper inquiry in its assessment of his claim. None of these complaints were elaborated with the necessary or relevant details or particulars by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge, 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, nor do I find any merits in his intended application.   

13.  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.

14.  In the Applicant’s case, the Board dismissed his claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and 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 findings of the Board.

15.  Furthermore, the fact is that it has also been correctly established by the Director in his decisions that the risk of harm in the Applicant’s claim 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 vJenkins & Anor [2013] 1 HKC 526.     

16.  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.

17.  Moreover, the Applicant recently on 20 December 2023 filed an affirmation requesting to withdraw his application as he now has no problem in his home country and that he wants to go home without any further details or particulars in support of his request.  

18.  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 in view of his latest confirmation of no more problem returning 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