MD AMIR HOSSAIN alias ABDUL ALIM alias ALIM, ABDUL alias FAZLUL HOQUE KHAN alias KHAN FAZLUL HOQUE alias MD AMIR HOSSION alias HOSSAIN MD AMIR alias HOSSAIN MD AMIR alias MD JAMAL AHMED v. TORTURE CLAIMS APPEAL BOARD

HCAL 1266/2019

[2024] HKCFI 1660

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1266 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 48-year-old national of Bangladesh, who had since 1995 on various occasions entered Hong Kong either illegally or on false or faked travel documents of different identities and was eventually repatriated on each occasions upon his subsequent arrests by police, again did so on 24 August 2015, and on the following day he surrendered to the Immigration Department and 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”) as he supported their rival Bangladesh Nationalist Party (“BNP”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Wahedpur, Debidwar, Comilla, Bangladesh. After leaving school he assisted in his father’s grocery store, got married and raised a family with 2 children in his home district, and supported BNP regularly attended their local meetings and activities.

3.  In December 2013 while the Applicant and his fellow BNP supporters were attending a BNP rally in Comilla, they were attacked by AL supporters that the Applicant suffered cuts and bruises all over his body and was subsequently taken to the hospital for medical treatments.

4.  Upon discharge from hospital the Applicant reported the assault to the police, but later when he heard that those local AL supporters were furious at him for getting the police against them that they were going to take revenge by killing him, the Applicant became fearful for his life and fled from his home district to Chittagong, and in August 2015 he departed Bangladesh for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 13 September 2018 with legal representation but failed to attend any scheduled screening interviews before an immigration officer due to various alleged reasons.

5.  By a Notice of Decision dated 26 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”).

6.  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 or any political reason for them to specifically target him for harm given that he was just an ordinary BNP supporter without holding any official post in the party, 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 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 Dhaka or Chittagong where he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him.

7.  On 8 October 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 17 January 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 26 April 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it considered him not a reliable witness and rejected his claim of fear of harm from the local AL supporters that caused him to leave his home country to come to Hong Kong to seek protection as wholly unreliable, and concluded that he had fabricated his account of events of being involved in political activities that led to his alleged risk of harm from rival political party in his home country to create a claim for non-refoulement protection that it is not accepted that there is any real chance or a real risk that he would face any harm from anyone for any reason upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 10 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge, of which he confirmed at the hearing as follows:

(1)  That the Board was in breach of procedural fairness in that it unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2)  That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  That the Board’s decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  That the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  That the Applicant was not given an opportunity to put forward his submissions at his appeal hearing before the Board or to reply to the Director’s submission during his appeal hearing; and

(6)  That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated which led to groundless speculation that it would be safe for the Applicant to return to his home country.

10.  These are however all just some bare and vague assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or that the decision was unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or what source of news or COI relied on by the Board were not officially recognized or were hearsay or outdated, and how was the Applicant not given the opportunity to make his submissions during his appeal hearing before the Board. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable 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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 45 - 79 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 also been established by the Director in his decision 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, a decision also agreed and confirmed by the Board, 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.  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.

15.  For 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