ISLAM MD ASHRAFUL v. TORTURE CLAIMS APPEAL BOARD

HCAL 412/2023

[2024] HKCFI 2697

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 412 OF 2023

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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 35-year-old national of Bangladesh who entered Hong Kong illegally on 20 December 2019 and was arrested by police on 19 February 2021. 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 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”) and/or by his creditors over his unpaid debts. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Jhenaidah, Bangladesh. After leaving school he ran his own garment business in his home district, and supported BNP regularly attended their local meetings and activities.

3.  In 2017 he borrowed a loan from his neighbours for expending his business, and for which he was to make monthly interest payments to them until full repayment of his loan.

4.  After AL won the 2018 General Election, their supporters started to harass and intimidate rival supporters, and one night in 2019 while on his way home the Applicant was confronted by a group of local AL supporters in threatening manner but the Applicant managed to flee from the scene without being harmed.

5.  About a week later the Applicant again encountered the same group of AL supporters in the street, and again he managed to run away from them and hid inside a forest without being located by them.

6.  Thereafter the Applicant became concerned for his safety, closed his garment shop and left Jhenaidah for Chittagong to take shelter in a cousin’s place, but as he still feared of running into the AL people again or of being pursued by his neighbours over his outstanding loan, the Applicant in December 2019 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 18 October 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 11 January 2022 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 local AL supporters or his neighbours upon his return to Bangladesh as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of those local AL supporters to seriously harm or kill him or any political reason for them to do so other than to harass him as common between rival supporters given that he was just an ordinary BNP supporter without any official post in the party, while his dispute with his neighbours was a private monetary matter between them, 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 162 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 where he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him.

9.  On 17 January 2022, 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 29 November 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 19 January 2023, his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board accepted the Applicant’s claims of fear of harm from those local AL supporters and his creditor as alleged but found in the absence of any state or official involvement in either cases 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.

11.  On 20 March 2023 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That the Adjudicator did not consider the Applicant’s claim properly and just dismissed it without even taking time to think about his life;

(2)  That the Adjudicator failed to accept his submitted documents because they were in Bengali without translation and unreasonably refused to give him time to arrange for their translation;

(3)  That the interpreter was unhelpful and impatient during the appeal hearing.

12.  These are however just bare and vague assertions of the Applicant without any relevant or necessary 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 how did the Adjudicator fail to properly consider his claim or appeal, or in what way was the interpreter impatient or unhelpful when the record shows that the Applicant was able to make his representation to the Board with the assistance of the interpreter without any problem, or what documents that he tried to submit at the hearing but refused by the Board without translation when even now when he still failed to do so. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant either in his Form or at the hearing of his application before the Court, 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 fact is that it has been established by both the Director and the Board in their respective decisions that the risks of harm in his claim if real are localized ones 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.

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 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