Jahangir Alam v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 797/2019

[2023] HKCFI 1212

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 797 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 19 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”), I shall deal with his application on paper.

The applicant

3.The applicant is a national of Bangladesh. He entered Hong Kong illegally on 3 March 2007. On 17 May 2007, he lodged a torture claim, which was rejected on 17 June 2013. On 16 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 Ali and Mir, members of the Bangladesh Nationalist Party (“BNP”), because he was a member of the Awami League (“AL”) and refused to join the BNP.

4.In short, the applicant joined the AL in 2006 and had been handling administrative matters for them. Ali and Mir were both local leaders of the BNP. They often beat the applicant and his peers for helping the AL and refusing to join the BNP. In February 2007, Ali and Mir intercepted the applicant and attempted to initiate a fight. The applicant escaped. However, he learnt that Ali and Mir were irritated by his assistance to the AL. The police also helped them as the BNP was in power. The police threatened and even detained the applicant’s father. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 8 of the Notice of Decision dated 23 August 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

5.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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) the low level of past ill-treatments indicated an unlikelihood of future risk of harm [15]-[17]; (ii) state protection would be available to him [18]; and (iii) internal relocation was a viable alternative [19].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 21 February 2019, the Board conducted an oral hearing for his appeal.

8.The Board considered the applicant’s claim and his personal background [11]-[21]. It also clarified material aspects with him during the hearing [22]-[28]. Having considered all the evidence, the Board found that, the country of origin information showed that Bangladesh experienced a political turmoil from 2006 to 2007 when the applicant claimed to have active political involvements. However, he demonstrated little knowledge about what happened in this period [29]-[33]. Meanwhile, on his own evidence, the applicant claimed that he no longer had any continuous interests in politics [34]. As a result, the Board refused to accept that he would face any real or substantial risk of harm from the BNP. The Board also rejected the applicant’s ground of family reunion as it was not a ground for non-refoulement protection [35]-[37].

9.For these reasons, the Board rejected the applicant’s claim and dismissed his appeal.

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

10.The applicant has filed Form 86 dated 22 March 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant enclosed a copy of the Board’s Decision without raising any specific ground.

DISCUSSION

12.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).

13.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

14.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.”

15.The Board had assessed his evidence and refused to accept that he would face any real or substantial risk of harm from the BNP. There is no valid reason from the applicant to challenge the Board’s Decision.

16.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.

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

CONCLUSION

18.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 11^th day of May 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