ABDUL JABBAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 2691/2019

[2025] HKCFI 2769

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2691 OF 2019

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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 51-year-old national of Bangladesh who had previously entered Hong Kong using passports of different identities last arrived in Hong Kong on 6 November 2006 again with a passport of another identity, and for which he was arrested by police on 8 November 2006 and was subsequently convicted and sentenced to prison for 2 months. Upon his discharge from prison and was referred to the Immigration Department for deportation, 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 Jamaat-e-Islami (“JeI”) and/or by his brother-in-law over their personal dispute, and after his torture claim was rejected, he then sought non-refoulement protection on the same bases. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Hobigonj, Bangladesh. After leaving school he worked as a clerk, got married and raised a family with 3 children in his home district, and supported JeI regularly attended their local meetings and activities without holding any official post in the party, during which he and his fellow JeI supporters would frequently run into violent conflicts and confrontations with the AL supporters.

3.  One day in March 2004 while the Applicant together with 3 fellow JeI supporters were promoting their party in a residential area in his home district, they were attacked by a group of AL supporters with hockey sticks until intervened by other local residents, whereupon the Applicant was taken to the local hospital for medical treatments for cuts and bruises.

4.  Several days later while the Applicant was having meals with 2 fellow JeI supporters in a restaurant, they were confronted by some AL members and their men who demanded that they stop working for JeI or else they would be killed.

5.  As a result the Applicant became fearful for his life and departed Bangladesh in May 2004 for Hong Kong to stay with his brother-in-law Khan who was a local resident in Hong Kong until July 2006 when the Applicant returned to Bangladesh for his grandmother’s funeral.

6.  While backed to his home district in Hobigonj, the Applicant was told by his sister of her wish to divorce Khan due to his abuses against her and for having another wife in Hong Kong, and for which she also made a complaint to the local police against Khan, and so when Khan subsequently returned to Bangladesh, he was arrested by police and was detained for interrogations and investigations for 3 months before he was eventually released without charge, but for which he blamed the Applicant for advising his wife to divorce him, and threatened to kill the Applicant in revenge.

7.  One afternoon while he was on his way home from town with his cousin, the Applicant was attacked by 3 unknown men with knives that he sustained some slashes on his arms but managed to escape with his cousin from the scene to return home for medical treatments.

8.  As he suspected that those assailants were sent by Khan to kill him, the Applicant decided to leave the country to save his life, and so on 11 August 2006 he departed Bangladesh again for Hong Kong with a passport of another identity, but when he was refused entry by the Hong Kong Immigration Department, he therefore traveled to China and eventually returned to Bangladesh.

9.  As he still feared of being harmed or killed but Khan and the AL supporters, the Applicant on 5 November 2006 again departed Bangladesh on another passport with another identity for Hong Kong, and upon his arrest by the police for misleading a police officer for which he was subsequently convicted and sentenced to prison for 2 months, and upon his discharge from prison and was referred to the Immigration Department for deportation, he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 15 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

10.  By a Notice of Decision dated 31 May 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”).

11.  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 his brother-in-law or 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 other than his suspicions or speculations, 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 158 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 Dhaka or Chittagong where it would be difficult if not impossible for anyone to locate him.

12.  On 11 June 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 23 May 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 4 September 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

13.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence but gave him the benefit of the doubt that he might have received threats from certain local AL supporters and from his brother-in-law due to their person disputes but found no reliable evidence of any real intention of either of them to seriously harm or kill him, and that in any event these were private and personal disputes between them without 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 by anyone that his claim for non-refoulement protection failed on all applicable grounds.

14.  On 16 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, nor did he request any oral hearing for 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.

15.  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.

16.  In the Applicant’s case, 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 his claim 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.

17.  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.

18.  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.

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