HASHEM MD ABUL v. TORTURE CLAIMS APPEAL BOARD

HCAL 741/2022

[2025] HKCFI 6174

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 741 OF 2022

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 40-year-old national of Bangladesh who arrived in Hong Kong on 12 April 2019 as a visitor with permission to remain as such up to 12 May 2019 when he did not depart and instead overstayed, and was arrested by police some 4 months later on 16 September 2019. 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”) for refusing to pay them extortion money. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Modhupur, District Lakshmipur, Bangladesh. After leaving school he ran a garment shop to make his living, got married and raised a family with 2 daughters in his home district, and supported the political party Bangladesh Nationalist Party (“BNP”) regularly attended their local meetings and activities.

3.  Over the years a group of local AL supporters had been extorting money from the Applicant’s shop, and to avoid trouble the Applicant would always try to pay over small sums of money just to send them away.

4.  However, one day in October 2018 those AL supporters became greedy and demanded that he handed over his motorcycle to them, and when he refused, they then vandalized his shop and broke things before they left.

5.  Several weeks later one night in November 2018 while on his way home on his motorcycle from work, the Applicant was confronted by the same group of AL supporters who drove him off the road, then attacked him with wooden sticks and pushed his motorcycle off into some bushes.

6.  Shortly thereafter one day in December 2018 the Applicant received a telephone call that his wife and elder daughter had died in a traffic accident, and as he suspected that they were killed by those AL supporters, the Applicant became fearful for his own life and fled to Chittagong to take shelter in a friend’s place, and on 12 April 2019 he departed Bangladesh for Hong Kong where he subsequently overstayed, and upon his arrest by the police some 4 months later he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 21 October 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 25 November 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”).

8.  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 his perceived fear from those local AL supporters will be real and foreseeable 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 to extort money from him, nor is there any reliable evidence that his wife and daughter had indeed been killed by them other than some unreliable hearsays and his own speculations, 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 140,000 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 Khulna or Rajshahi where it would be difficult if not impossible for anyone to locate him.

9.  On 6 December 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 17 May 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 3 August 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  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 some AL supporters extorting money from him that caused him to leave his country to come to Hong Kong to seek protection, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until some 4 months after his overstay and only upon his arrest by the police, and that even if his account of events prior to his departure from Bangladesh were true that there was no reliable evidence of any real intention of those AL supporters to seriously harm or kill him or his wife or daughters other than to press him for extortion money that it was not satisfied that there is any real chance or real risk that the Applicant would be subjected to any harm upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 10 August 2022 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 in which he just asserted that the decision has many errors but without identifying any of them or with any details or particulars or elaboration as to what errors if any that the Board had made in its decision. 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 of the Board’s decision.

12.  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.

13.  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 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.

14.  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 agreed and 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.

15.  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.

16.  Moreover, the Applicant recently in writing requested to withdraw his application as his issues in his home country have been resolved that he now wants to return to Bangladesh.

17.  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 issues 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