RAHMAN S M SHAFIQUR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 281/2019

[2022] HKCFI 588

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 281 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 43-year-old national of Bangladesh who entered Hong Kong illegally on 10 September 2015 and subsequently raised a non-refoulement claim with the Immigration Department on the basis that if he returned to Bangladesh he would be harmed or killed by the 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 West Bamna, Islampur, Gilabari, Chinadoli, Jamalpur, Bangladesh.  While at school he joined the youth wing of BNP, and thereafter he continued to support BNP by regularly attending their local meetings and rallies while working as a farmer in his home district. 

3.  In March/April 2015 during a local sub-district election, he and his BNP supporters tried to prevent a group of AL supporters from stealing the ballot boxes from the polling station, but were attacked by them with hockey sticks and other weapons that many of the BNP supporters including the Applicant suffered bruises and cuts that he subsequently required medical treatments.

4.  After another attack several days later by those AL people and suffering further injuries, the Applicant became fearful for his life and fled from his home district to Chittagong and then Gazipur and eventually to a relative’s place in Narayanganj, but when he later was informed by his mother that those AL people were still looking for him everywhere, the Applicant therefore on 8 August 2015 he departed Bangladesh 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 30 June 2017 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 18 September 2017 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 or reason for him to be specifically targeted by the AL people given his low position in his 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 156 million people spread across a vast territory of more than 148,460 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Bangladesh away from his home district such as Sylhet or Faridabad where it would be difficult if not impossible for those local AL supporters to locate him.

7.  On 29 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 2 August 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 17 January 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found that the Applicant was not a credible witness, that his evidence were inconsistent and his explanations towards the Board’s questions were unpersuasive that it doubted the credibility of his claim that he was ever a member of BNP or of his alleged attacks by the AL people or of his alleged injuries and hospitalization, and rejected his claim of ever being threatened or assaulted by the local AL supporters, and concluded that there is no evidence that he will face any real risk of proscribed harm from any AL supporters upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.   

9.  On 30 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim as before and with some bare assertions against the interpreter during his screening interview before the immigration officer without any details or particulars, while his complaints about the immigration officer of having no “practical experience” of his problem in Bangladesh or that the officer asked some unnecessary questions of him over his claim are simply untenable and not reasonably arguable for his intended challenge, nor did he request any oral hearing for his application.

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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 26 – 38 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 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 to challenge the findings of the Board.  

12.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, a decision also 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.     

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.  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