UDDIN MOHAMMAD NASIR v. TORTURE CLAIMS APPEAL BOARD

HCAL 2237/2020

[2025] HKCFI 160

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2237 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 47-year-old national of Bangladesh who entered Hong Kong illegally on 10 March 2016 and surrendered to the Immigration Department on 14 March 2016 when 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”) for refusing to pay them extortion money. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Ashfalisa, Padua, Chauddagram, Comilla, Chittagong, Bangladesh. After leaving school he worked as a farmer and a cook, got married and raised a family with 2 children in his home district, and supported the political party Bangladesh Nationalist Party (“BNP”) regularly attended their local meetings and activities.

3.  In 2012, he went to work as a glass maker in Dubai, returning to Bangladesh in 2014 to start his own glass making business in his home district, and resumed his support of BNP.

4.  In November 2014, a group of local AL supporters headed by a man by the name of Salauddin started to come to his shop to demand money from him for their protection of his shop, and when the Applicant refused, they then made threats against him, and later started to vandalize his shop, and then one day they beat him with hockey sticks that resulted in cuts and bruises all over his body.

5.  Still the Applicant refused to pay them any extortion money, but after another particularly severe beating by those AL supporters that he suffered injuries to his back that he was taken to a local hospital for treatments, the Applicant became fearful for his life that he fled to Chittagong, during which he heard that those AL supporters were looking for him everywhere, he decided that it was no longer safe to remain in Bangladesh, and so on 21 December 2015 he departed for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 16 August 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 10 September 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”).

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 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 to extort money from him, 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 157 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 where it would be difficult if not impossible for anyone to locate him.

8.  On 20 September 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 22 November 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 28 October 2020, his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found no reliable evidence of any real intention of those local AL supporters to seriously harm or kill him other than just to extort money from 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 if resorted to as well as reasonable internal relocation alternatives for him to move safely to other areas 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.

10.  On 9 November 2020 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 to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge. 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.

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 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.

13.  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.

14.  Moreover, the Applicant recently on 19 September 2024 in writing requested to withdraw his application as his problem in his home country has been resolved that it is now safe for him to return to Bangladesh.

15.  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