Khan Tapon v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 752/2019

[2023] HKCFI 1004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 752 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 absent 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 8 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

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

The applicant

4.The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 29 September 2012.  On 23 December 2012, he was arrested by the police for being an illegal immigrant.  On 25 December 2012, he raised a torture claim, which was rejected on 22 July 2013.  On 6 August 2013, 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 Awami League (“AL”), the police and the Rapid Action Battalion (“RAD”) because of his membership with Chatra Shibir (“CB”) and because of a false murder case.

5.According to the applicant, he became an ordinary member of CB in 2011. CB was the student wing of Jamaat-e-Islami (“Jamaat”) which was an opposition party of AL.  Jamaat and other political groups constantly organized strikes against the AL since AL came into power in 2009.  The applicant was later promoted to a joint secretary of CB.  On 30 August 2012, a serious strike happened, during which the members of AL and those of Jamaat got into an armed fight and a local leader of AL, Mannan, was killed during the conflict.  While the applicant fled the scene, he was told by his parents that the police visited his house to locate him.  He also learnt that he was charged with the murder of Mannan and an arrest warrant was issued against him.  At the advice of his local party president, the applicant fled to Hong Kong for protection.  While he was in Hong Kong, he knew that the AL announced to hang two leaders of his party.  He was also told that he was sentenced to life imprisonment after the trial in his absence for the murder of Mannan.  As a result, the applicant sought to stay in Hong Kong.  Details of his claim are set out at paragraph 9 of the Notice of Decision dated 31 May 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 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”);

b.  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

c.  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 his claimed fear of harm was groundless.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [15]-[18]; (ii) state protection would be available to him [19]-[21]; and (iii) internal relocation was a viable alternative [22].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 23 January 2019, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of an interpreter [11].

9.The Board noted that the applicant had intended to come to Hong Kong prior to the strike incident in August 2012 [31].  The Board also probed into his alleged memberships with CB and Jamaat and, in light of the applicant’s vague and inconsistent evidence, cast doubt of his involvements with the aforementioned parties [32]-[39].  The Board noticed that the applicant gave confusing evidence as to the name of the person who was killed during the strike incident [40] and that he was struggling in giving the name of the person who notified him of the victim’s death [41].  Meanwhile, he failed to comply with the promise to produce documents in support of his charge [42]. The Board further found that the applicant’s evidence on the injuries he sustained during the strike incident and on the subsequent medical treatments problematic and unconvincing [43]-[44].

10.In these circumstances, the Board opined that the applicant was not involved with CB or Jamaat; that he did not participate the strike on 30 August 2012 or any other occasion; that he was never implicated for harming or killing anyone; that there was no charges or cases against him; and that he was not pursued by the police or the RAB [46].

11.On the basis of lack of credibility, the Board rejected the applicant’s claim and dismissed his appeal.

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

12.The applicant has filed Form 86 dated 18 March 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant set out the grounds below.

(1)  Procedural impropriety: The Board failed to properly apply para. 2 of the UN committee against Torture General Comment No. 2, meaning state effectiveness in its reforms; failed to enquire the country of origin information; and failed to make assessment of BOR 3 risk.

(2)  Error /misdirection in law: failing to give sufficient reasons in support of finding of BOR 3 risk and no sufficient basis to come to its conclusion that he is not subjected to torture or BOR 3 risk upon his refoulement.

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 Decision should be examined with rigorous examination and anxious scrutiny.

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.The Board did not accept his evidence on the facts of his case. His allegation of being convicted of murder in his absence is not supported by any document and the Board had rejected his evidence on this issue. The burden being on the applicant, he is unable to establish a prima facie case in support of this allegation. The Board is quite right to disregard his allegation. As to the grounds under paragraph 13, supra, they are general allegations or propositions of the law. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

18.There is no valid reason from the applicant to challenge the Board’s Decision.

19.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.

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

CONCLUSION

21.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 20^th day of April 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