MOHAMMED SALIM SARKER v. TORTURE CLAIMS APPEAL BOARD

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.  The Applicant is a 59-year-old national of Bangladesh who had previously overstayed in Hong Kong and was repatriated to his home country entered Hong Kong again in November 2012 illegally and was arrested by police on 21 November 2012, and for which he was convicted and sentenced to prison.  After he was discharged from prison and was referred to the Immigration Department for deportation, he raised a non-refoulement claim for protection on the basis that if he returned to Bangladesh he would be harmed or killed by some local gangsters for refusing to pay extortion moneys.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Gopinathupur, Kasba, Brahmanbaria, Bangladesh.  After leaving school he worked in the factory to make his living, got married and raised a family with 4 children in his home district, and supported the political party Awami League (“AL”) regularly attended their local meetings and activities.

3.  One day in 2003 while on his way home from work, the Applicant was attacked by several local supporters of rival political party Bangladesh Nationalist Party (“BNP”), and as a result he became fearful for his life and departed Bangladesh for Hong Kong under a different identity and overstayed, but was subsequently arrested by police and repatriated to Bangladesh in January 2004.

4.  Upon returning to his home village as he still felt the threats from those local BNP supporters, the Applicant again departed Bangladesh in June 2007 under his present identity when he again overstayed, and upon his arrest he then raised a torture claim to the Immigration Department, but before it was determined he withdrew his claim in October 2011 and was repatriated to Bangladesh in the same month.

5.  Upon returning to Bangladesh the Applicant started some fruits trading business in Dhaka, but in 2012 he received threatening demands for extortion moneys from some men whom he suspected to be the local gangsters, and when he refused those men then threatened to kill him, and so the Applicant on 18 November 2012 departed Bangladesh 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 12 April 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 29 May 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 assessed the level of risk of harm from those local gangsters 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 squeeze money from him, 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 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 Chittagong or Khulna where it would be difficult if not impossible for anyone to locate him.

8.  On 10 June 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 30 December 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 7 September 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  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 any gangsters for any extortion money that caused him to leave his country again to come to Hong Kong to seek protection, 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 gangsters to seriously harm or kill him other than to extort money from him, 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 by anyone that his claim for non-refoulement protection failed on all applicable grounds.    

10.  On 14 October 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 forth any proper ground for his intended challenge, nor was he able to do so at the hearing of 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 of the Board’s decision.

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 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 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.

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 all 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 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