MONG MICAL v. TORTURE CLAIMS APPEAL BOARD

HCAL 2759/2019

[2025] HKCFI 3682

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2759 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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 32-year-old national of Bangladesh who travelled to Hong Kong on 14 February 2019 as a visitor with permission to remain as such up to 28 February 2019 when he on 21 February 2019 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 the Muslims and/or Hindus community as he was a minority Buddhist due to religious conflicts within the country.

2.  The Applicant was born and raised as a Buddhist in Village Bakarali Bill, Bajaliya, Shatkaniya, Chittagong, Bangladesh. After leaving school he became a Buddhist monk and moved to reside in a Buddhist monastery in his home village.

3.  In 2012, a Buddhist monk in Bangladesh posted some article in the social media which was considered as having insulted the religion of Islam that the Muslims in certain part of the country started a riot against the Buddhist minority by attacking them with weapons and burning down Buddhist monasteries and buildings which eventually led to the monastery in which the Applicant was residing in his home village being attacked by a group of Muslims armed with wooden sticks but the Applicant together with some other monks managed to make their escape into the surrounding jungle without serious injuries.

4.  As a result the Applicant became fearful for his life and fled to Chittagong to take shelter in the Nandankanan monastery, and in October 2012 he departed Bangladesh for India where he stayed in various monasteries in Nagpur.

5.  However, towards the end of 2015 the Applicant started to be targeted by the local Hindus in Nagpur by threatening him to stop proselytizing Buddhism in India, and so he left the country for Malaysia in August 2016 before eventually returning to India where he stayed in Bodhgaya to continue to live as a monk, but soon again he started to receive threats from the local Hindus, and so on 6 February 2019 he again departed India for Hong Kong where he subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 8 May 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 5 June 2019 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 the local Muslims or Hindus 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 to specifically target him or to have any adverse interest in him after all these years since he left the country in 2012, 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 there are laws in Bangladesh that provides for the right to profess practice and propagate all religions that religious freedom is generally respected within the country, while reasonable internal relocation alternatives are also 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 areas of the country away from his home district in large cities such as Khulna or Rajshahi where it would be difficult if not impossible for anyone to locate him.

8.  On 14 June 2019, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he declined to attended any oral hearing and insisted that his appeal be dealt with by the Board on paper without further oral evidence despite being advised by the Board that there were issues raised of his claim that he would need to explain and clarify, and so the Board proceeded to deal with his appeal in his absence and on paper only based on the materials and information supplied by him earlier to the Director. On 24 July 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 and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from the local Muslims or Hindus that caused him to leave his country to come to Hong Kong to seek protection as there was no reliable evidence of him ever being targeted by them for harm when according to relevant COI that the mob violence against the Buddhist community in the Ramu area in 2012 was an isolated incident as Buddhists and Muslims had lived in harmony for centuries in Bangladesh that it is not accepted that there is any real or serious animosities or hostilities between the 2 religions within the country, and that the Bangladeshi government and authorities would ensure that there be no violence on religious minorities that it is not accepted that the Applicant would face any real risk of harm as a Buddhist or otherwise in the country, and where necessary that state or police protection would be available to him upon his return to Bangladesh if resorted to 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.

10.  On 19 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 other than just some bare assertions that the decision was unreasonable as his claim was not carefully and properly considered but without providing any details or particulars or elaboration as to how it was so, 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 for the thorough and detailed analysis and reasoning set out in its decision after the Applicant had declined to attend any hearing or to give any further evidence except to rely on those provided earlier to the Director and available in the hearing bundle before the Board, 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 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.

14.  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.  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, 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