MOLLA MASUD v. TORTURE CLAIMS APPEAL BOARD

HCAL 1412/2018

[2021] HKCFI 1640

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1412 of 2018

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 refused.

Observations for the Applicant:

1.  The Applicant is a 29-year-old national of Bangladesh who entered Hong Kong illegally on 7 July 2012 and was arrested by the police on the same day. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by some local supporters of the political party Awami League (“AL”) for refusing to pay extortion money. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Domshar, District Shariatpur, Bangladesh where his parents ran a fertilizers shop in the market place.

3.  Sometimes in early 2012, while the Applicant was helping out in his parents’ shop, some local AL supporters came in and demanded for extortion money, and when the Applicant refused, they beat him until he lost consciousness and was later taken to the hospital for treatments.

4.  After the incident, the Applicant became fearful for his life, and fled to take shelter in his grandmother’s place in another village, and when he later heard that those AL supporters were looking for him and were harassing his parents who had had to close down their shop and ceased their business, the Applicant then fled to Dhaka, and from there he departed for India where he stayed for about one week before returning to Bangladesh, but when he heard that those AL supporters were still looking for him, he departed Bangladesh again on 27 June 2012 for China, and from there he later sneaked into Hong Kong and raised his torture claim, and after it was rejected by the Immigration Department, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 18 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 15 September 2017 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”).

6.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial risk of him being harmed or killed by those local AL supporters upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from them, that they were merely after extortion money from his parents’ shop business which had since been closed that there is no reason why they would still have any adverse interest in the Applicant after all these years, that 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”) shows 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 parts of Bangladesh away from his home district in large cities such as Dhaka where he had stayed before without incidents and where it would be difficult if not impossible for him to be located.

7.  On 28 September 2017 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 11 May 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 6 July 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found on the facts of the Applicant’s claim that it was a case of extortion against his parents’ shop which had since been closed and the business ceased with his parents having relocated elsewhere, with the Applicant himself also having departed Bangladesh all these years that it is not accepted that he would still be specifically targeted for harm by those extortionists, and that with state/police protection available upon his return to Bangladesh as well as reasonable internal relocation for him to move safely to other areas or to where his parents now live without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

9.  On 17 July 2018 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 merely attached copies of the hearing bundle of documents for his appeal before the Board without putting forward any proper ground for his intended challenge, while at the hearing of his application he just repeated his claim that his problem in his home country still exists that he cannot go back. 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.

10.  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.

11.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts 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.     

12.  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.

13.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse 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