MD SARWAR ALAM PARVEZ v. TORTURE CLAIMS APPEAL BOARD

HCAL 1585/2019

[2024] HKCFI 1188

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1585 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 / the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 48-year-old national of Bangladesh who arrived in Hong Kong on 16 October 2006 as a visitor with permission to remain as such up to 25 October 2006 when he did not depart and instead overstayed, and was arrested by police more than 2 years later on 18 February 2009. 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 Bangladesh Nationalist Party (“BNP”) as he supported their rival Awami League (“AL”), 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 Deokhali, District Mymensingh, Bangladesh. After leaving school he worked as a driver, got married and raised a family with a son in his home district, and supported AL regularly attended their local meetings and activities.

3.  In 2000 he was employed as a driver for one of the local AL leaders Azam driving him to and from various AL activities, but one day during the 2005 general election when he accompanied Azam to attend a meeting in Melando, they together with other AL supporters were attacked by a group of BNP supporters with hockey sticks and wooden clubs, and when the Applicant was assisting Azam to flee from the scene, they were fired upon by some of the BNP people with pistols but managed to escape unharmed, but there were fatalities and casualties on both side resulted from the attacks and shootings.

4.  After being present in 2 further similar incidents and having witnessed Azam being attacked by BNP supporters with guns and grenades, the Applicant became fearful for his own safety and resigned from his job as driver for Azam and fled to Dhaka, and on 16 October 2006 he departed Bangladesh for Hong Kong where he overstayed, and upon his subsequent arrest by the police he raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 10 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  While released on recognizance pending the determination of his claim, the Applicant was again arrested by police on 23 October 2017 for undertaking unauthorized employment, for which he was subsequently convicted and sentenced to prison for 15 months.

6.  By a Notice of Decision dated 24 April 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 found no substantial grounds for believing that there will be any real risk of him being harmed or killed by those local BNP supporters upon his return to Bangladesh 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 harm or kill him or any political reason for them to target him for harm as their intention was to go after his leader Azam and given that the Applicant was only his driver with no official post in AL, 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 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 he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him.

8.  On 10 May 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 16 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 31 May 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  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 BNP supporters that caused him to flee his country to come to Hong Kong to seek protection, that there was no reliable evidence of any real intention of those BNP people to harm or kill him when their real target was Azam and that he was just the driver, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until more than 2 years later and only after his arrest, and concluded that there is no reliable evidence that the Applicant had faced any real risk in the past or that he will face any real risk of any significant form of harm due to any past political involvement upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 11 June 2019 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 decision but without putting forth any proper 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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 36 – 64 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.

13.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s 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, 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.

14.  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.

15.  For 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 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