KONOK AHMED KHAN alias AHMED ROCHY v. TORTURE CLAIMS APPEAL BOARD

HCAL 2160/2018

[2022] HKCFI 875

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2160 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 the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 49-year-old national of Bangladesh who had repeatedly entered Hong Kong illegally in the past under false identities and was subsequently deported, and on the last occasion on 20 August 2006 he arrived under his true identity but with a false travel document as a visitor with permission to remain up to 13 September 2006 when he did not depart and instead overstayed, and was arrested by police almost 7 years later on 12 April 2013 for which he was subsequently convicted and sentenced to prison, during which he raised a non-refoulement claim 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 Village Laxmipur, District Rajpara, Rajshahi, Bangladesh. After leaving school he worked in various jobs in his home village, and supported BNP by regularly attending their local meetings and rallies, during which he and his fellow BNP supporters would often come into violent conflicts with the local AL supporters, and in one such violent confrontation in 1993, he and one of his friends suffered wounds and were taken to the hospital where his friend later died from his sword wounds.

3.  After his discharge from the hospital, the Applicant received threats from those AL supporters that next time they would make sure that he would also be killed like his friend, and for which the Applicant became fearful for his life and fled from his home village for Mitford in Dhaka, and on 13 January 1995 he departed Bangladesh for Hong Kong under a false identity where he overstayed, and was later arrested by police and was subsequently convicted and sentenced to prison for 3 months before being deported back to Bangladesh on 20 June 1997.

4.  Upon returning to Mitford in Dhaka, as the Applicant continued to receive threats from the AL people, he departed Bangladesh again in 2002 for Hong Kong under another false identity, and after he overstayed and was arrested by police, and for which he was convicted and sentenced to prison of 4 months before being repatriated to Bangladesh on 13 January 2003.         

5.  However, the threats from the AL people persisted, and after one occasion when he was attacked by them with knives that his left knee was cut and required medical treatment, the Applicant departed Bangladesh on 20 August 2006 again for Hong Kong as a visitor under his own identity and again overstayed, and was eventually arrested by police almost 7 years later on 12 April 2013, for which he was subsequently convicted and sentenced to prison for a total term of 26 months, during which he raised his non-refoulement claim for protection, for which he upon discharge from prison completed a Non-refoulement Claim Form (“NCF”) on 6 December 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 10 May 2017 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 AL supporters upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that whatever adverse interest they might have on the Applicant would have dissipated after all these years, 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”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 156 million people spread across a vast territory of more than 130,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Bangladesh away from his home district in large cities such as Chittagong where it would be difficult if not impossible for those local AL supporters to locate him.

8.  On 18 May 2017 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 15 May 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 2 October 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found significant parts of the Applicant’s evidence vague and lacking in details, and inconsistent and contradictory that it formed the view that he is not a credible witness and doubted the credibility of his claim, which had been further undermined by his failure to raise his claim upon his arrival in Hong Kong until years later after his arrest by the police, and concluded that the Applicant is not of any adverse interest to AL members or supporters or anyone else in Bangladesh or that there is any reasonable likelihood or possibility or chance of any real risk of him being harmed for the reasons he claimed or any other reason in the foreseeable future upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.  

10.  On 8 October 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 just stated that he is not satisfied with the decision and repeated his claim as before that his life is still in danger in his home country but without putting forth any proper ground for his intended challenge, nor did he attend the hearing of his application, and in his explanation he claimed that his absence was due to health reason but without providing any supporting documentary evidence, and that in any event he confirmed that he did not require another oral hearing, and that the Court may proceed to deal with his application in his absence and on paper.

11.  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.

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 adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 81 – 105 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.  

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 if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part 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