SHEIKH MOHAMMOD SUBUJ v. TORTURE CLAIMS APPEAL BOARD

HCAL 1517/2018

[2021] HKCFI 1545

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1517 of 2018

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 28-year-old national of Bangladesh who entered Hong Kong illegally on 28 June 2013 and was arrested by the police on 6 November 2013.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by local supporters of the rival political party Awami League (“AL”).  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Rajbari District, Dhaka Division, Bangladesh. While in college he joined the student wing of the political party Bangladesh Nationalist Party (“BNP”) regularly convening meetings for his fellow students in the campus.

3.  On day in June 2012 while he was attending one such meeting with his fellow BNP supporters, some members of AL’s student wing stormed in and attacked them with wooden sticks, but the Applicant managed to escape from the scene unscathed.

4.  A few days later he received a police warrant in the mail that those AL supporters had made a false charge against him for robbing a shop, to which the Applicant did not report to the police but instead he hid in a friend’s place, but several days later when he was attending another meeting with his fellow BNP supporters, they were again attacked by AL supporters but on these occasions the BNP supporters were able to fight back with their weapons, and during the brawl the Applicant was struck on his back with hockey sticks but managed to flee from the scene to take shelter in a friend’s place.

5.  On 11 June 2012 he fled from his home village for Dhaka City to stay with his cousin, but when he later heard from his parents that the police were looking for him after one of the AL supporters had died from injuries sustained in that earlier fight in the campus, and so the Applicant departed Bangladesh on 2 October 2012 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 24 July 2015 with legal representation from the Duty Lawyer Service (“DLS”) but failed to complete his screening interview before the Immigration Department for various alleged medical reasons.     

6.  By a Notice of Decision dated 3 February 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 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 reliable evidence that he had been specifically targeted by the AL people or any reason for them to do so given that the Applicant was merely a student member with no official post in BNP, nor is it accepted that he was wanted or being pursued by the police in the absence of any reliable evidence and the fact that he had never been arrested all these times before his departure from the country which he was able to do without any difficulty, that 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”) shows that reasonable internal relocation alternatives are available in Bangladesh with a large population of 169 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 young man to move to other parts of Bangladesh away from his home district in large cities such as Dhaka where he had stayed before without incidents and where it would be difficult if not impossible for to him to be located.

8.  By a Notice of Further Decision dated 6 January 2017 the Director in the absence of any additional facts from the Applicant which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”) rejected his claim under BOR 2 Risk.

9.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 11 February 2016, and for which he attended an oral hearing on before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 26 July 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found no evidence that the Applicant had been targeted by or of any interest to the AL people given that he was only a student member of the student wing of BNP or to the police or the Bangladesh government when he was able to obtain his passport and to leave the country through proper official channel, and that in the absence of any official involvement that state/police protection would be available to him if required, and that in any event after all these years that it is doubtful that the AL people would still have any interest in him that there is no foreseeable real or personal risk if the Applicant is refouled to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.    

11.  On 1 August 2018 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, and in his supporting affirmation of the same date he merely stated that the decision was unreasonable in failing to consider all the matters raised in the claim but without any details or particulars or elaboration as to how it was so, nor did he put forward any other proper ground for his intended challenge or request any oral hearing for his application.

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 finding of no evidence of any real and foreseeable risk of harm from anyone in Bangladesh for the thorough and detailed analysis and reasoning set out in paragraphs 38 – 63 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 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 to challenge the finding of the Board.  

14.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of Bangladesh, a decision also 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.  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.

16.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse 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