ALAMGIR v. TORTURE CLAIMS APPEAL BOARD

HCAL 3504/2019

[2025] HKCFI 3800

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 3504 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 the Applicant in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 35-year-old national of Bangladesh who entered Hong Kong illegally on 12 June 2013 and was arrested by police on the same day. 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 certain local supporters of the political party Awami League (“AL”) as he supported their rival Bangladesh Nationalist Party (“BNP”), 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 Munshiganj, Bangladesh. After leaving school he followed his family’s tradition to support BNP regularly attended their local meetings and activities as a worker for the party, during which he and his fellow BNP supporters frequently came into violent conflicts with the local AL supporters.

3.  In 2006 the Applicant started to be confronted by the local AL supporters to quit supporting BNP and to join their party, and when he refused, they then made threats against him, and on one such occasion in 2007 he was attacked by those AL supporters with a chopper that he suffered a fractured rib and injuries to his left foot that he was subsequently taken to the hospital for medical treatments.

4.  In 2008 the situation became worse for BNP supporters after AL became the ruling party and that more attacks were made against them that the Applicant’s paternal uncle became one of the victims when he was killed, and to avoid the persistent threats from the local AL supporters the Applicant shortly thereafter moved to Keraniganj, Dhaka to take shelter in a relative’s place, but when he later heard that those AL people were looking for him everywhere that he felt it was no longer safe to remain in Bangladesh, and so on 23 April 2013 he departed 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 Supplementary Claim Form (“SCF”) on 9 August 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 19 October 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”).

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 of any real intention of them to seriously harm or kill him or political reason for them to specifically target him given that he was just a lowly BNP worker, 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 areas of the country away from his home district in large cities such as Sylhet or Khulna where it would be difficult if not impossible for anyone to locate him.

7.  On 31 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 30 August 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 21 November 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1] 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 the AL people that caused him to leave his country to come to Hong Kong to seek protection, that even if his account of events prior to his departure of Bangladesh were true that there was no reliable evidence of any real intention of those AL people to seriously harm or kill him or for them to have any political reasons to specifically target him given that he was just a party worker and not any senior leader of BNP, and that in any event in the absence of any official involvement 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.

9.  On 26 November 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward various grounds for his intended challenge, of which he confirmed at the hearing as follows:

(1)  That the Board was in breach of procedural fairness in that it had unlawfully fettered its discretion by 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 and 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 with the lathe Applicant was not given the opportunity to put forward his submissions in his oral hearing before the Board, nor was he invited to submit written submission for his appeal before the Board.

10.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any 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 hearsays or outdated, while the record shows that the Applicant was given every opportunity to make his representation and submissions for his claim with the assistance of an interpreter during his appeal hearing before the Board. 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.

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 even 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.  As such, 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.  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, 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