MR SUMON alias MOHAMMAD RAHMAN SUMON v. TORTURE CLAIMS APPEAL BOARD

HCAL 607/2019

[2024] HKCFI 1176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 607 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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 46-year-old national of Bangladesh who last arrived in Hong Kong on 17 January 2002 as a visitor with permission to remain as such up to 25 January 2002 when he did not depart and instead overstayed, and was arrested by police more than 5 years later on 5 July 2007.  After he was referred to the Immigration Department for investigation, he raised a torture 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”), and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in District Narayanganj, Bangladesh. After leaving school he worked as a garments store keeper in his home district, and supported BNP regularly attended their local meetings and activities.

3.  In June 2001 while he was in Hong Kong as a visitor, a bomb exploded in his home district in Bangladesh during a local meeting of the AL members killing many people including several AL members, and for which the AL people suspected that the Applicant was involved and came to his home looking for him, and when they were unable to find him in the house, they warned his mother that they would hunt him down and kill him in revenge for the bombing.

4.  Upon his return to Bangladesh later in 2002, the Applicant was warned by his mother to leave the country to save his life from the threats of the local AL supporters or revenge from the families of those AL members killed in the bombing incident, and so on 17 January 2002 the Applicant departed Bangladesh for Hong Kong where he overstayed, and after his subsequent arrest by the police more than 5 years later in July 2007 he then raised his torture claim, and after it was rejected by the Immigration Department he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 29 July 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.  By a Notice of Decision dated 30 November 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found material inconsistencies and discrepancies in his evidence that it doubted the credibility of his claim of fear of harm from the AL people that caused him to leave his country to come to Hong Kong for protection, that his credibility was further undermined by his failure to raise his claim at the first opportunity upon his arrival in Hong Kong until more than 5 years later and only after his arrest by the police, that even if such claim were true that the level of risk of harm from those local AL supporters upon his return to Bangladesh was assessed as low due to the absence of any past ill-treatment from them and that it is not accepted that there would still be any adverse interest in him after all these years since he left the country in 2002, that in any event in the absence of any official involvement that state or police protection would be available to him upon his return to Bangladesh 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 157 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 areas of the country away from his home district in large cities such as Chittagong or Khulna where it would be difficult if not impossible for anyone to locate him.

7.  On 12 December 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 1 November 2018 before the Board together with his lawyer from DLS during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made by his lawyer on his behalf.  On 15 February 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found material inconsistencies evasiveness and discrepancies in the Applicant’s evidence that it did not consider him to be a truthful witness or that he had told the truth about his claim that it doubted the credibility of his claim of fear of harm from the local AL people that caused him to leave his country to come to Hong Kong to seek protection, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until more than 5 years later until he was arrested by police, and that even if his claim of threats from the local AL supporters or the families of the victims to kill him in revenge for the bombing incident were true that it is not accepted after all these years since he left the country that there would still be any adverse interest in him, and that in any event in the absence of any official involvement that state or police protection would be available to him 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 that his claim for non-refoulement protection failed on all applicable grounds.    

9.  On 4 March 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in his Form or his supporting affirmation of the same date in which he just repeated his claim as before without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application. 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.

10.  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.

11.  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 23 – 39 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.

12.  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 his 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.                

13.  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.

14.  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 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

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