MOULA MOHAMMAD GOLAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 3801/2019

[2022] HKCFI 1477

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo 3801 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;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of Bangladesh who entered Hong Kong illegally on 8 March 2017 and surrendered to the Immigration Department on 10 March 2017 when he raised a non-refoulement claim 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 Jamaat-e-Islam (“JEI”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Panti,Kumarkhali, Kushtia, Bangladesh. After leaving school he ran a shop in his village market, and followed his family’s tradition to support JEI regularly attended their local meetings and rallies together with his 2 brothers, during which they together with their fellow JEI supporters would frequently come into violent conflicts with the AL supporters which inevitably led to mass brawls between the two groups usually involving hockey sticks and other weapons and resulting in all sorts of injuries suffered by both sides including the Applicant and his brothers.

3.  As a result, his parents became concerned for their safety, and subsequently sent his brothers abroad to work in Qatar and Malaysia, while the Applicant also cut down on his participation in JEI activities.

4.  However, one night in September 2016, a group of AL supporters came to his home and attacked the Applicant by punching and kicking him violently until he lost consciousness and was taken to the hospital for medical treatments.

5.  Upon his discharge from hospital, the Applicant fled to Dhaka to take shelter in a relative’s home, but after another confrontation with AL supporters there that he managed to escape without injury, the Applicant felt it was no longer safe to remain in Bangladesh, and so on 20 February 2017 he departed 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 11 July 2018 and attended screening interview before the Immigration Department with legal representation.

6.  By a Notice of Decision dated 3 August 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 found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by those AL supporters upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from them, that violent confrontations between supporters of rival political parties were common in Bangladesh that there is no reliable evidence or reason for the AL people to specifically target the Applicant given that he was just an ordinary JEI supporter with no 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 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 part of Bangladesh away from his home district in large cities such as Chittagong or Khulna where it would be difficult if not impossible for those local AL supporters to locate him.

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 16 October 2019 with his lawyer before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 6 December 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found the Applicant’s evidence of events occurred in Bangladesh before his departure vague and confused that it doubted the credibility of his claim of fear of harm from the AL people that caused him to leave his country for Hong Kong, and that in any event if his problem with the AL people were true that it arose from a fight between two groups of supporters of rival political parties without any official involvement that state/police protection would be available to the Applicant upon his return to Bangladesh if needed that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 20 December 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he just repeated his claim as before that he will be killed by those AL supporters if refouled to his home country 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 eth 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 the Director in his decision that the risk of harm in the Applicant’s claim 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.  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.  Furthermore, the Applicant recently on 26 April 2022 filed an affirmation requesting to withdraw his application as he no longer has any problem in his home country and that he wants to return to Bangladesh.

15.  In the premises, and as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in review of his latest confirmation that there would be no 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