SRAMAN ASHUKTOS BARUA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1180/2020

[2025] HKCFI 3563

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1180 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 48-year-old national of Bangladesh who entered Hong Kong illegally on 10 January 2019 and surrendered to the Immigration Department on 22 January 2019 when 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 of the Muslim villagers in his home village for being a Buddhist and over their religious differences. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Buddhist in Village North Jaldai Barwa Para, District Chittagong, Bangladesh. After leaving school he worked as a shop salesman and later an owner of his own shop in his home village, got married and raised a family with 2 children.

3.  While Buddhists were in the minority in his home village where the majority of the villagers were Muslims, there used to be no conflicts between them until September 2012 after the Buddhist temple in the village was set on fire by unknown persons, and later when the Applicant and his fellow Buddhist villagers met to discuss about the destruction of their temple, they were stopped by a group of Muslim villagers who warned them not to raise any issue about the burning down of their temple or else they would be killed.

4.  Several days later while he was on his way home from work, the Applicant was attacked by a group of Muslim villagers and was stabbed by a knife on his back that he collapsed onto the ground, and was subsequently taken to hospital for medical treatments.

5.  A few weeks later in October 2012 someone set fire to his house but the Applicant and his family managed to escape unharmed, and as he suspected that those Muslim villagers were responsible for the fire, and fearing for the safety of his family, he therefore moved with his family away to Humjarbug in Chittagong where he subsequently worked as a construction worker to support his family.

6.  However, as he later heard that those Muslim villagers had made some false charges to the police against him, the Applicant felt that it was no longer safe to remain in Bangladesh, and so in December 2018 he departed Bangladesh for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 April 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 20 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”).

8.  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 Muslims villagers 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 or any reason for them to specifically target him as he was not the only Buddhist in the village, that in any event it was a private religious dispute between them only without 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 Dhaka where it would be difficult if not impossible for those local Muslim villagers to locate him.

9.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 27 December 2019 together with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 29 May 2020 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 those Muslim villagers in his home village for being a Buddhist that caused him to leave his country to come to Hong Kong to seek protection, that even if his account of events prior to his departure of Bangladesh were true that there was no reliable evidence of any real intention of any Muslim to seriously harm or kill him, 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, and that relevant COI show that while Islam is the official religion the law in Bangladesh provides that religious minorities have the right to worship freely, and that although religious conflicts between Muslims and other religious minorities including Buddhists did occur in the past but are not common, and that the Bangladeshi government have taken steps to protect its citizens as well as the rights and safety of Buddhists in Bangladesh that it is not accepted that the Applicant would face any real risk of harm for being a Buddhist upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 15 June 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his Form and supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That the Board was in breach of procedural unfairness in that it had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2)  That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  That the Board’s decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  That the Board failed to meet the greater care and duty owed to a self-represented claimants;

(5)  That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated with the lack of credible source of information that resulted in its groundless speculation that it would be safe for the Applicant to return to his home country;

(6)  That the Adjudicator rejected the Applicant’s claim without any proper inquiry or careful understanding of his situation;

(7)  That the hearing bundle was given to him just a few days before his appeal hearing with the majority of documents in English.

12.  These are however all such bare and vague assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what source of news relied on by the Board were not officially recognized or were simply hearsay or outdated, while there is no evidence that the hearing bundle was given to him late, or what relevancy is the fact that the majority of the documents in the bundle were in English when the Applicant was then represented by his lawyer from DLS and no such complaints were ever raised to the Board during his appeal hearing. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

13.  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.

14.  In the Applicant’s case, the Board rejected his claim 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 as well as submissions by his lawyer, 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.

15.  Furthermore, the fact is that it has also been established by the Director in his decision 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, 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.

16.  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.

17.  Moreover, the Applicant recently in writing requested to withdraw his application as he wants to return to his home country but without any further details as to what has happened to his claimed risk.

18.  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, I 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