Rahman Hanifur Alias Rana v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1132/2019

[2023] HKCFI 2102

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1132 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 4 April 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.

The applicant

3.The applicant is a national of Bangladesh. He entered Hong Kong illegally on 9 July 2012 and was arrested by the police for being a suspected illegal immigrant. On 11 July 2012, he raised a torture claim which was rejected on 28 January 2013. On 21 June 2013, he lodged a non-refoulement claim. His claim was thus assessed on all applicable grounds other than Torture risk[1]. He claimed that, if refouled, he would be harmed or killed by MD Rafiqul Islam (“Rafiqul”) and Rafiqul’s people who were associated with the Bangladesh Nationalist Party (“BNP”).

4.According to the applicant, Rafiqul was the local leader of the BNP. In 2004, he borrowed money from the applicant for his poultry farm. Until 2007, Rafiqul still hadn’t repaid the loan. When the applicant visited Rafiqul and asked for repayment, he was beaten by Rafiqul. His subsequent complaints to the village head and the police were both of no avail. Upon knowing the applicant’s complaints, Rafiqul assaulted him again. Out of fear, the applicant left for Hong Kong for the first time in September 2007. On 30 September 2011, he was sent back to Bangladesh. On 2 October 2011, some men approached the applicant’s house. While he escaped, he learnt that Rafiqul knew about his return and sent people to harm him. Again, he fled to Hong Kong for protection. While he was in Hong Kong, in April 2018, his wife informed him of Rafiqul’s constant visits and threats. He also filed a false case against the applicant. Meanwhile, the applicant mentioned that he took out a loan in 2006 from a bank but defaulted the payments. His wife also informed him about the bank’s notices demanding repayments. Details of his claim are set out at paragraph 9 of the Notice of Decision dated 16 July 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. In elaboration, the Director found that (i) the lack of evidence to support the applicant’s claim on the past events indicated an unsubstantiated future risk of harm [14]-[18]; (ii) state protection would be available to him [19]-[20]; and (iii) internal relocation was a viable option [21].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 1 March 2019, the Board conducted an oral hearing for his appeal, during which he was assisted by a Bengali interpreter [7].

8.The Board recapped the applicant’s claim and his personal background [25]-[53]. Having considered the evidence, the Board found that the applicant’s accounts were not credible or reliable [58]. For example, the applicant conceded that the information about how influential BNP was in his home village was made without foundation [58]. His evidence about his own financial situation, being able to lend Rafiqul a loan, was confusing and inconsistent [59]. His testimony about his earnings overseas was equally unreliable [60]. As a result, the Board cast doubt on the applicant’s capacity to lend Rafiqul a loan of the claimed sum [61]. It also questioned why the applicant would lend money to Rafiqul, concluding that there was no credible evidence to support this claim [62]-[62].

9.Even taking the applicant’s claim to the highest, the Board found that the applicant never sustained any serious injuries [64]; that there was no credible evidence to support that the applicant would face any risk of harm because of a false case [65]; that it was hearsay evidence that his wife was kidnapped [66]; and that it was illogical that Rafiqul would wish to confront the applicant since he was the one who wanted to avoid the repayment [68].

10.Meanwhile, the Board rejected the assertions that the police would not assist him in this private monetary dispute [72]. It also considered that the past harms failed to attain the minimum level of severity [77]. In any event, internal relocation was a viable option [81]-[88].

11.For the aforesaid 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

12.The applicant has filed Form 86 dated 29 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 did not set out 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 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 and found that state protection and alternative internal relocation are available to him. 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 23^rd day of August 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