MIA SHAHIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 3/2020

[2025] HKCFI 2179

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 3 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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 51-year-old national of Bangladesh who entered Hong Kong illegally on 21 November 2014, and was arrested by police on 23 November 2014. 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 Bahadur Pur, Jomadar Bari, Chargas, Kasba, Brahmanbaria District, Bangladesh. After leaving school he got married and have 2 children and worked as a legal assistant for a lawyer named Sheikh Habibullah (“Sheikh”), who was a BNP supporter in his home district. Since 2004, he supported BNP regularly attended their local meetings and activities without holding any official post in the party.

3.  In 2006, Sheikh was killed when he was leading a BNP rally by the cocktail bombs thrown at him by AL members. Sheikh’s brother filed complaints about the murder with the Applicant assisting substantially in the legal process. However, on 13 October 2010 the Applicant received verbal threats not to handle the case any longer. On 11 December 2011 and 25 July 2012, the threats of harm of the Applicant escalated from some AL people visiting his home and threatened his wife to kill him if he still handles Sheikh’s murder case, to a local AL parliament member threatening him to hand over all the papers of the case and stop getting involved in the case. The Applicant reluctantly agreed.

4.  On 15 December 2012, the Applicant was secretly going to the court again but when he was traveling there with his elder son, they was intercepted by 20 to 25 AL people. They were taken to the home of an AL leader with the AL people threatened to kill the Applicant for ignoring their previous warnings, but the Applicant was able to persuade them and they were both released shortly afterwards.

5.  The Applicant then contacted a lawyer friend of Sheikh, and taking his advice the Applicant moved with his family to District Habiganj, Sylhet, but the Applicant still feared for his safety and on 4 May 2014 he departed Bangladesh for China, and from there he later sneaked into Hong Kong on 21 November 2014 and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 22 February 2018 and attended screening interview before the Immigration Department with legal representation.

6.  By a Notice of Decision dated 18 May 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 assessed the level of risk of harm from the local AL supporters 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 them to harm him other than to put pressure on the Applicant to stop involving in the murder case, and 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 168 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 young adult with working experience to move to other areas of the country away from his home district in large cities such as Dhaka or Khulna where it would be difficult if not impossible for anyone 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 12 March 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 20 December 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board accepted his qualification of being a legal assistant but found that his involvement in the murder case was low level and was not critical to the success of the murder case, and found no reliable evidence of his claim of fear of harm from those local AL leaders or members that caused him to leave the country to come to Hong Kong to seek protection, and that in any event in the absence of any official involvement in either case that state or police protection would be available to the Applicant upon his return to Bangladesh as well as reasonable internal relocation alternatives for him to move safely to other parts of 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.

10.  On 2 January 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in his Form or his supporting affirmation of the same date to which he just attached a copy of the hearing bundle before the Board but without putting forward any proper ground for his intended challenge, nor was he able to do so at the hearing of 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 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.

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 all 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