HOSSAIN SHEIKH AFJAL v. TORTURE CLAIMS APPEAL BOAR

HCAL 1867/2019

[2024] HKCFI 2202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1867 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 46-year-old national of Bangladesh who entered Hong Kong illegally on 16 August 2015 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 Bangladesh Nationalist Party (“BNP”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Mazirkanda, Mohabbatpur, Nawabganj, Dhaka, Bangladesh. After leaving school he worked as a farmer, got married and raised a family with 2 children, and supported BNP regularly attended their local meetings and activities.

3.  In 2002 he went to Kuwait to work as a driver until 2012 when he returned to his home in Bangladesh and resumed his support for BNP by participating in their meetings and activities, during which he and his fellow BNP supporters were frequently harassed and intimidated by the local AL supporters as AL was then the ruling party after having won the 2008 General Election, and on one occasion in 2013, the Applicant was attacked by them with wooden sticks that he suffered a fractured elbow and was subsequently taken to a local hospital for medical treatments.

4.  Thereafter the harassments and intimidations from the local AL supporters against the Applicant and his fellow BNP supporters continued, and on one occasion in 2015 they even made false charges against the Applicant and his fellow BNP supporters for vandalism that they were arrested by police for investigation.

5.  Upon his subsequent release on bail, the Applicant fled from his home village to Dhaka, and on 31 July 2015 he departed Bangladesh for China, and from there he later sneaked in 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 14 November 2018 and attended screening interview before the Immigration Department with legal representation.

6.  By a Notice of Decision dated 10 December 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial ground for believing that he would be in danger of being harmed or killed by 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 or of any political reason for them to specifically target him for harm given that he was just a low level BNP supporters without any official post in the party, nor is there any evidence of any pursuit of him by the police given that he was able to leave the country without any problem, and 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 Mymensingh or Chittagong where it would be difficult if not impossible for anyone to locate him.

8.  On 28 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 19 March 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 24 June 2019, his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted his claim of fear of harm from those local AL supporters or the authorities that caused him to flee his country to come to Hong Kong to seek protection, that there is no evidence of any risk of him being charged or prosecuted by the police or authorities on the basis of his own evidence given to the Board that he had never been arrested by the Bangladeshi police, and that in any event if such risk from the local AL supporters were real that 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 for him to move safely to other part 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 4 July 2019, 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 stated that he rejects the decision as it disregarded his dangerous situation in his home country but without providing any necessary or relevant details or particulars or elaboration as to how it did so. 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 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 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.

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