DHALI NAZMUL v. TORTURE CLAIMS APPEAL BOARD

HCAL 541/2020

[2024] HKCFI 3118

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 541 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 34-year-old national of Bangladesh who entered Hong Kong illegally on 22 September 2014 and was arrested by police on the same day. 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 Jamaat-e-Islami (“JeI”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Nageshwari, Nageshwari Upzila, Kurigram, Bangladesh. After leaving school he assisted in his father’s garment business in his home district, and supported JeI regularly attended their local meetings and activities but without holding any official post in the party.

3.  In December 2013 while the Applicant together with his fellow JeI were attending a peaceful rally at a local bus station, they were attacked by a group of local AL supporters with wooden sticks that the Applicant suffered cuts and bruises all over his body.

4.  After the assault the Applicant fled from his home village to a neighboring village to take shelter in a cousin’s place before moving on to Dhaka to stay with his sister, but when he later heard that those AL supporters were looking for him everywhere, he felt that it was no longer safe to remain in Bangladesh, and so on 16 September 2014 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 Non-refoulement Claim Form (“NCF”) on 2 November 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 28 November 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”).

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 other than to harass or intimidate him as rival supporters commonly did within the country, nor is there any political reason for them to specifically target him for harm given that he was just an ordinary JeI supporter without any official post in the party, 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 Chittagong or Dhaka where he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him.

7.  On 10 December 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 5 November 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 13 March 2020, his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board accepted the Applicant’s claim of fear of harm from the local AL members due to political rivalry between AL and JeI but found no reliable evidence of any real intention of those local AL supporters to seriously harm or kill him or to have any political reason to specifically target him given that he was just an ordinary JeI supporter without any official post in the party, 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 areas 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 7 April 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 his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forward 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.

10.  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.

11.  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 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12.  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.

13.  Moreover, the Applicant recently on 9 September 2024 filed an affirmation requesting to withdraw his application as he has no more problem returning to his home country.

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, 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