Kamal Md Masum v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 962/2019

[2023] HKCFI 417

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 962 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 1 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), he appeared before the Court on 27 September 2022.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Bangladesh. He entered Hong Kong illegally on 18 July 2015 and surrendered himself to the Immigration Department on 21 July 2015. On 24 November 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by members of the Bangladesh Awami League (“AL”) and the Sarbahara Party (“SBP”).

5.In brevity, the applicant’s claimed fear of harm from members of the aforesaid groups originated from his refusal to pay extortion to them. The applicant claimed that he had a fish farming business in 2011. Since early 2013, members of the SBP, which was affiliated with the AL, had been demanding him to pay the extortion. The applicant complied with the first demand. Three months later, when the applicant refused to give the harvest from his business to them, they attacked and injured him. After the attack, the applicant hid in his friend’s place in Narayanganj. But when he returned home, he encountered the members who demanded the extortion again. The applicant again escaped to Narayanganj. The applicant felt tremendously pressurized. As a result, he fled to India and eventually came to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 15 October 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]-[14]; (ii) the conducts of the AL and SBP members did not show a real intention to cause harm or even kill the applicant [15]-[18]; (iii) state protection would be available to him [19]-[23]; and (iv) internal relocation was a viable alternative [24]-[25].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 20 March 2019, the Board conducted an oral hearing for his appeal, during which he testified [16].

9.The Board considered the applicant’s claim and the relevant legal principles [18]-[46]. It went on to weigh the applicant’s evidence against the country of origin information (“COI”) [59]-[176]. In particular, the Board found that, on the applicant’s own evidence, he had been less politically active since 2011 [87]. It rejected the applicant’s assertion that the SBP was so powerful that the police would not assist him as the COI showed that SBP was in fact an outlaw group in the view of the government [93]-[102]. It further rejected the applicant’s claim that the SBP was affiliated with the AL [123]-[132]. In addition, the Board noticed that the COI indicated that, during the 2014 election, the political situations in Bangladesh were volatile and the AL was oppressed by other political groups [137]-[140]. Meanwhile, the applicant encountered no problems with the Bangladesh authorities [160].

10.In light of the aforesaid observations, the Board found that the applicant was an unreliable witness. It rejected that the AL or SBP members had ever ill-treated the applicant nor did it accept the applicant’s claim on the alleged extortion incidents [177]. As a result, the Board rejected the applicant’s claim. in any event, internal relocation was a viable alternative [188]-[197].

11.For the above reasons, the Board dismissed the applicant’s appeal.

Application for leave to apply for judicial review of the Board’s Decision

12.The applicant has filed Form 86 on 9 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant enclosed a copy of the Board’s Decision, but he did not raise any specific ground.

DISCUSSION

14.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant confirmed that he understands the Director’s Decision and the Board’s Decision. He was allowed to give evidence freely before the Board. He further said that the situation in his country is not good and he still has problems. He asked for a stay in Hong Kong for a further 6 to 7 months.

16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

17.There is no valid reason to challenge the Board’s Decision.

18.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

20.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 7^th day of March 2023

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