BARUA SHIMUL v. TORTURE CLAIMS APPEAL BOARD

HCAL 2760/2019

[2025] HKCFI 3995

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2760 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 27-year-old national of Bangladesh who arrived in Hong Kong on 12 January 2019 on an Indian passport as a visitor and with permission to remain as such for 14 days, but on 24 January 2019 he surrendered to the Immigration Department and claimed to have lost his Bangladeshi passport in Hong Kong, and raised a non‑refoulement claim for protection on the basis that if he returned to Bangladesh he would be harmed and persecuted by Islamic religious extremists and/or the majority Muslims community for religious reason as he is a minority Buddhist.

2.  The Applicant was born and raised as a Buddhist in East Kalaojan Village, Chittagong, Bangladesh where he practiced the Buddhist religion with his parents both at home and in the local monastery every day to pray and worship the Buddhist.

3.  In September 2012 there was a series of attacks on Buddhist monasteries and Hindu temples in Ramu Upazila by local mobs caused by rumours on social media that later became known as the Ramu Violence which also spread to the Chittagong District where the Applicant’s home village was, and where the mobs also threatened and attacked the local Buddhists including the Applicant’s family during which the Applicant suffered a cut in his back, but he managed to flee from his home village for Amirabad to receive medical treatment, and that he subsequently took shelter in a monastery in Chittagong.

4.  However, shortly thereafter a mob arrived and attacked the Buddhist monks and vandalized the monastery, during which the Applicant was also hit by hockey sticks and suffered cuts and bruises all over his body.

5.  As a result the Applicant felt it was no longer safe to remain in Bangladesh, and so in January 2013 he departed Bangladesh for India where he stayed in various monasteries in Kolkata and Mumbai without incidents.

6.  In 2015 he travelled to Thailand, Malaysia and Singapore attending various Buddhist activities during which he kept in contact with his parents who had since returned to live in his home village in Chittagong after the 2012 Ramu Violence had ended.

7.  In 2018 the Applicant returned to India to stay in the monasteries in Delhi and Mumbai, and on 11 January 2019 he departed India for Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non‑refoulement Claim Form (“NCF”) on 2 March 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 23 April 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”).

9.  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 or persecution from Islamic extremists or Muslims community upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them other than the 2 incidents arising from the 2012 Ramu Violence only and that thereafter he had been able to live in various places both in and out of Bangladesh without any further incidents, that there is no evidence of any intention of the Muslims extremists to harm or target him or 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 Bangladeshi laws guarantee religious freedom with equal status and rights to all religious minorities in the country, that there have been no further major violent incidents against the Buddhist minority in Bangladesh after the 2012 Ramu Violence, and that 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 140,000 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 cities with large population of Buddhists such as Chittagong where the Applicant can live without fear of risk of harm from religious extremists or religious conflicts or persecutions.

10.  On 6 May 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board did not hold any oral hearing and proceeded to deal with his appeal on papers based on the materials and information provided earlier by the Applicant to the Director and available in the hearing bundle before the Board. On 19 July 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision[1] the Board accepted the Applicant’s claim of fear of harm from Islamic religious extremists or the Muslims majority due to him being a minority Buddhist but found no evidence of him ever been subjected to any threats or ill-treatments from any Muslims since the incidents in his home village during the 2012 Ramu Violence in or out of his country or anywhere else for some 7 years up to the time when he raised his claim in Hong Kong, 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 if resorted to, while relevant COI show that Bangladeshi laws and constitution guarantee religious freedom amongst its citizens that religious minorities are protected with equal rights and status in the country, that since the 2012 Ramu Violence there has been no further major incidence against the minority Buddhists in Bangladesh other than some minor and isolated incidents that it is clear that the Bangladeshi authorities have since restored law and order within the country, and that reasonable internal relocation alternatives are also available for the Applicant to move safely to other parts of the country away from his home district with large population of Buddhists without any risk of any religious discriminations or persecutions by any religious majorities within the country that his claim for non-refoulement protection failed on all the applicable grounds.

12.  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 in his supporting affirmation of the same date in which he just stated that the decision is unreasonable as it failed to consider all the matters and/or to give adequate reasons for its decision but without providing any relevant or necessary details or particulars or elaboration as to how it did so, nor was he able to do so at the hearing of his application other than some bare assertions that the situation has worsen in his home country. 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.

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: 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.

14.  In the Applicant’s case, the Board rejected 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 his answers to questions raised of his claim as well as relevant COI, 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.

15.  Furthermore, the fact is that it has also 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 with large Buddhist population without any risk of religious conflicts, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.  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.

17.  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