MD HABIBUR RAHMAN v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 1252/2019

[2022] HKCFI 1582

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1252 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 41-year-old national of Bangladesh who entered Hong Kong illegally on 21 January 2013 and was arrested by police on 24 January 2013. 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 gangsters for having witnessed them murdering a member of the political party Bangladesh Nationalist Party (“BNP”) and/or by the BNP people for failing to assist the police in their prosecution of the gangsters for the murder, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Paragao, District Munshiganj, Bangladesh. After leaving school he worked in various jobs, got married and raised a family with a daughter in his home village, and supported the political party BNP regularly attended their local meetings and rallies.

3.  One day in August 2011 at a deserted spot of the village, the Applicant saw 3 men whom he recognized as some local gangsters beating a BNP member to death with hockey sticks, and when he was spotted by those gangsters, they warned him not to disclose anything to the police or else they would kill him too.

4.  Thereafter the Applicant informed the local BNP leader of what he saw and was persuaded to go to the police to tell them about the murder, but before he was able to do so, the elder brother of one of those gangsters who was the local leader of the political party Awami League (“AL”) came to put pressure on him and warned him not to go to the police as otherwise there would be serious consequences, the Applicant became hesitant about going to the police and decided not to do anything.

5.  For the next 2 years he faced all sorts of pressure and threats from those gangsters as well as the local people of both AL and BNP, and when his wife became pregnant with their child, he decided to leave his home village by moving his family to stay with his wife’s parents in Rangpur, and on 8 January 2013 he himself departed Bangladesh 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 13 August 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 27 September 2018 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”).

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 gangsters or people of either AL or BNP upon his return to Bangladesh as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of any of them to seriously harm or kill him despite all the time and opportunity for them to do so during all those years prior to his departure of the country, 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”) 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 where it would be difficult if not impossible for any of his perceived enemies to locate him.

8.  On 9 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 15 January 2019 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 26 April 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board accepted the Applicant’s evidence of fear of threats and pressure from those local gangsters and people of both AL and BNP over what he had witnessed about the murder, but found no evidence of any actual harm or ill-treatment being inflicted against him by any of them prior to his departure of the country, and that in any event in the absence of any official involvement that state/police protection would be available to him if needed upon his return to Bangladesh as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 9 May 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 but without putting forth any proper or valid ground for his intended challenge, nor did he request any oral hearing for his application. 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.

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 correctly 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 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.

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 28 April 2022 filed an affirmation requesting to withdraw his application as he wants to return to his home country as soon as possible.

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 given his latest confirmation of his wish to return to his home country as soon as possible, 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