ASHIAR MD v. TORTURE CLAIMS APPEAL BOARD

HCAL 1843/2020

[2025] HKCFI 1991

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1843 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 / 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 49-year-old national of Bangladesh who arrived in Hong Kong on 19 February 2019 as a visitor with permission to remain as such up to 27 February 2019 when he did not depart and instead overstayed, and on 7 March 2019 he surrendered to the Immigration Department and 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 Khajura, Jhenaidah, Bangladesh. After leaving school he assisted in his father’s restaurant and later owned his own restaurant and also operated business relating to sale of motor cycles and spare parts in his home district, got married and raised a family with 2 children, and supported BNP regularly attended their local meetings and activities.

3.  However, in 2007 after AL became the ruling party their local supporters started to harass and intimidate the BNP supporters, and with mass brawls between the rival supporters almost every day, during which the Applicant and his fellow BNP supporters were attacked with wooden clubs and hockey sticks, and on one occasion in February 2012 when he was on his way home from work that the Applicant was ambushed by a group of AL supporters when they beat him savagely until they were intervened by some passers-by who then brought the Applicant to a local clinic for medical treatments.

4.  As the harassments and intimidations persisted, and further deteriorated one night in 2018 when those AL supporters came to the Applicant’s home and dragged him out to beat him with wooden sticks, and before they left they threatened that next time they would kill him.

5.  Upon his subsequent discharge from hospital, the Applicant felt that it was no longer safe to remain in Bangladesh, and so on 18 February 2019 he departed the country for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection to the Immigration Department, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 June 2019 and attended screening interview before the Immigration Department with legal representation.

6.  By a Notice of Decision dated 26 August 2019 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 reasonable likelihood that the risk of harm which he perceived from those local AL 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 seriously harm or kill him other than the harassments and intimidations between supporters of rival political parties then common in Bangladesh, 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 159 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 Barisal or Chittagong where it would be difficult if not impossible for anyone to locate him.

8.  On 4 September 2019 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 14 July 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 18 August 2020 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 AL supporters that caused him to leave his country to come to Hong Kong to seek protection, that even if his account of attacks by the AL supporters were true that there was no reliable evidence of any real intention of them to seriously harm or kill him other than the usual harassments and intimidations common between supporters of rival political parties, 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.

10.  On 16 September 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in 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. 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.  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.  Moreover, the Applicant recently on 8 April 2025 filed an affirmation requesting to withdraw his application as all his problems in his home country have been resolved that he now wants to return to Bangladesh.

15.  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, and in view of his latest confirmation of no more 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