HOSSAIN SAYED v. TORTURE CLAIMS APPEAL BOARD

HCAL 1535/2020

[2025] HKCFI 824

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1535 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 44-year-old national of Bangladesh who entered Hong Kong illegally on 3 May 2015 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, 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”) as he supported their rival Bangladesh Nationalist Party (“BNP”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Naran Kora, Comilla, Bangladesh. After leaving school he worked in various jobs such as driver and marketing, got married and raised a family 2 children in his home village, and regularly attended the local meetings and activities of BNP, during which he and his fellow BNP supporters would often come into violent conflicts with the AL supporters.

3.  After AL won the general election in 2009 and became the ruling party, certain of their local supporters became more hostile and aggressive against the BNP supporters including the Applicant, and after repeated threats and assaults being made against him, the Applicant subsequently fled from his home village to Chittagong, and on 28 April 2015 he departed Bangladesh for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 June 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  By a Notice of Decision dated 28 June 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”).

5.  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 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 any political reason for them to specifically target him for harm, 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 160 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 Dhaka where it would be difficult if not impossible for anyone to locate him.

6.  On 9 July 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 10 June 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 29 May 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from those local AL supporters and/or the police that caused him to leave his country to come to Hong Kong to seek protection, that even if his claimed risk were real that there was no reliable evidence of any real intention of those local AL supporters to seriously harm or kill him or of any adverse interest of the police in him, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Bangladesh as well as reasonable internal relocation alternatives for him to move safely to other parts 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.

8.  On 22 July 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)  That the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

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

(3)  That the Board’s decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural error or unfairness;

(4)  That the Board failed to meet the greater care and duties owed to a self-represented claimant;

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

(6)  That the Board had significantly relied on source of news not officially recognized or were simply hearsays or outdated with the lack of credible source of information that led to groundless speculations that it is safe for the Applicant to return to his home country;

(7)  That the hearing bundle was given to the Applicant just a few days before the appeal hearing with the majority of documents in English thereby giving insufficient time for the Applicant to prepare for his appeal given his limited skills in English and being unrepresented that he was unable to seek interpretation which is procedurally unfair to the Applicant.

9.  These are however mostly just bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or how did the Board unlawfully fetter its discretion or fail to make proper inquiry into the Applicant’s claim, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what source of news relied on by the Board were not officially recognized or were simply hearsay or outdated. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find them reasonably arguable for his intended challenge.

10.  As for the only complaint provided with some details or particulars by the Applicant as to the alleged late provision of the hearing bundle to him for his appeal hearing, there is no documentary evidence such as the covering letter or envelope for the hearing bundle to show the actual postmark, while most of the documents such as his own NCF, record of his screening interview and the Director’s decision had in fact earlier already been provided to him when he still had legal representation from DLS, while the Applicant never raised any such issue to the Board during his appeal hearing when he was in fact able to make proper representation for his appeal without any problem and with the assistance of an interpreter. As such I do not find any merits in this complaint of the Applicant either.

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 been established by both the Director and the Board in their respective decisions 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, 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.  Moreover, the Applicant recently on 15 January 2025 filed an affirmation requesting to withdraw his application as all his problems in his home country have been resolved that he now wants to return to Bangladesh.

16.  For all these reasons I am 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 that it is safe 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