ALOM S M JAHAHGIR v. TORTURE CLAIMS APPEAL BOARD

HCAL 1745/2020

[2025] HKCFI 156

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1745 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 58-year-old national of Bangladesh who entered Hong Kong illegally on 7 April 2015 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, 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”) 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 Village Bhadikara, District Hobigonj, Bangladesh. After leaving school he worked as a self-employed person and supported BNP by joining its youth wing in his home district regularly attended their local meetings and activities.

3.  During the 2010 local Union Council Election, while working in the party’s election campaign, the Applicant and his fellow supporters were attacked by a group of AL supporters that resulted in many injuries including the Applicant who required medical treatments at the local hospital.

4.  On the following day after the attack a group of AL supporters came to the Applicant’s home holding weapons and shouting threats and abuses but the Applicant managed to make his escape and fled to hide in a neighbouring village.

5.  Later when he heard that those AL supporters had made false charges against him to the police, the Applicant fled to Sylhet and then Mirpur, and in early April 2015 he departed Bangladesh for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 November 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 16 December 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 or to specifically target him given that he was just an ordinary member of the youth wing of BNP, 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 169 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 where it would be difficult if not impossible for those local AL supporters to locate him.

8.  The Applicant did not lodge any appeal to the Torture Claims Appeal Board (“Board”) against this decision of the Director, and on 7 November 2016 the Director on his own initiative invited the Applicant to submit additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2 risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 5 December 2016 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Bangladesh.

9.  On 15 November 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against this Further Decision of the Director, and for which he attended an oral hearing on 23 January 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 18 August 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from those local AL supporters that caused him to leave his country to come to Hong Kong to seek protection, that there was no reliable evidence of any real intention of those AL supporters to seriously harm or kill him or that he will be entitled to properly defend any false charges which might have been brought against him in a court under a fair trial upon his return to Bangladesh, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant from any harm from those local AL supporters as well as reasonable internal relocation alternatives for him to move safely within the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 31 August 2020 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:

(1)  That the Board was in breach of procedural fairness by unlawfully fettering its discretion in 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 Board had significantly relied on source of news not officially recognized or were simply hearsays or outdated that led to groundless speculation that it would be safe for the Applicant to return to his country of origin;

(6)  That the hearing bundle was given to the Applicant just a few days before his appeal hearing before the Board with the majority of the documents in English without translation thereby giving the Applicant insufficient time to prepare for his appeal due to his limited skills in English and him being unrepresented which is procedurally unfair and unreasonable to the Applicant.

12.  These are however mostly just bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary 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 was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what source of news relied on by the Board were not officially recognized or were simply hearsays or outdated. 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.

13.  As for his complaint of being given the hearing bundle late for his appeal before the Board and with the majority of the documents in English thereby giving him insufficient time to prepare for his appeal, the Applicant never provided any documentary evidence such as the covering letter or the envelope to show the actual postal date to corroborate his assertion, and that the majority of the documents had in fact already provided earlier to his lawyer when he was still represented by DLS, while at the appeal hearing he never raised any such issue and was able to make his representation to the Board without any problem and with the assistance of the interpreter, nor did he ever make any request for more time or adjournment to better prepare for his appeal to the Board. In the circumstances I do not find any merits in this complaint of the Applicant either.

14.  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.

15.  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.

16.  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.  Moreover, the Applicant recently on 4 December 2024 filed an affirmation requesting to withdraw his application as his problem in his home country is “finished” that he now wants to return to Bangladesh.

18.  In the premises, as I am for the given reasons 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 of no more problem 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