Md Kamrul Islam Alias Md Harun v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 2575/2019

[2023] HKCFI 2097

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2575 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 dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 22 August 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”), a hearing was fixed on 20 March 2023.

3.At the hearing, the applicant said that he wants to withdraw his application because he is not happy to be detained in Tai Tam Prison. He considers that this is an unlawful detention and it is for this reason he wants to withdraw his application so that he may return to Bangladesh.

4.This Court takes the view that as the applicant has made the application out of his own volition, the Court will deal with his application accordingly. Since his reason for his application verges upon being involuntary, the Court will also consider the merits of his case before making its final decision.

5.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

6.The applicant is a national of Bangladesh. He had entered Hong Kong previously with false identities. His last entry in Hong Kong was on 28 April 2006 and was arrested by the police for having landed in Hong Kong unlawfully on 26 April 2007. In November 2007, he raised a torture claim which was later rejected on 5 October 2012. On 9 February 2014, he lodged a CIDTP claim, which was taken as a non-refoulement claim and assessed on all applicable grounds other than that on torture risk[1]. His claim was made on the basis that, if refouled, he would be harmed or killed by members of Awami League (“AL”) as he refused to join them.

7.According to the applicant, he became the general secretary of the Bangladesh Nationalist Party (“BNP”) in his hometown in 1991. There was a general election held in 1991. Prior to the election, the people from AL approached the applicant and asked him to join the AL. The applicant refused. In the following months, several incidents happened. In the first two incidents, the applicant was only called upon by the AL chairman who asked him to join the AL. He was not injured. Later, some BNP members broke into the AL’s office which led to the third incident where a revenge had taken place and four of the applicant’s party members were injured. The AL members also visited the applicant’s house and threatened his mother about his whereabouts. The applicant escaped. In July or August 1991, feared of the AL’s death threat, the applicant escaped to Dhaka and stayed from 1991 to 1993. Meanwhile, the applicant claimed that he went to cast his vote on the election day and was chased after by the AL members. He was able to escape and hide again. A few months after the election date, the applicant was again chased by the AL members with weapons and he fell into a ditch and broke his right wrist. The next day, they went to the applicant’s shop and hurt one of his employees. Luckily, the applicant was not at the scene. As he felt that it was no longer safe to stay in the country, he fled to Hong Kong in 1993. After he was refouled, the AL members found him and attempted to attack him. He was able to escape again. He also believed that AL members killed his friend who refused to join the AL and that this would also happen to him. Since then, he had been hiding in different countries, including Nepal and India, if he was removed back from Hong Kong. While he was away, he learnt from his mother that his brother was imprisoned because of him. Thus, the applicant sought protection in Hong Kong. Details of his claim are set out at paragraph 9 of the Notice of Decision dated 11 December 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

8.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”).

9.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 intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [21]-[24]; (ii) state protection would be available to him [25]-[30]; and (iii) internal relocation was a viable option [31]-[36].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 17 May 2019 and 20 May 2019, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of an interpreter [7].

11.At the outset, the Board accepted the applicant’s evidence in relation to his political activities as the general secretary of his local area BNP [42]. It also accepted the existence of clashes between the members of the BNP and the AL [43]-[45]. Insofar as the issue of credibility was concerned, the Board accepted the applicant as a witness of truth [46]-[48]. The Board further accepted the applicant’s evidence that his brother was imprisoned due to his political involvement [49]-[51].

12.Notwithstanding the above, the Board noted that the applicant’s political involvement was low-leveled and he had ceased to be politically active since 1992. He had returned to Bangladesh on multiple occasions without any problems, sometimes voluntarily [54]. It noted that, despite the applicant’s claimed fear, thirty years had passed and nothing eventful happened in between [55]. The applicant was also unable to describe a continuing adverse interest in him from the AL [56]. Therefore, the Board found that, after a lapse of time, the AL had ceased to have any adverse interest in the applicant [57]-[60].

13.Despite the finding that state protection might not be available to the applicant [61]-[69], the Board concluded that internal relocation was a viable alternative for the applicant [70]-[78]. As a result, the Board rejected the applicant’s claim and dismissed his appeal.

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

14.The applicant has filed Form 86 dated 4 September 2019 for leave to apply for judicial review of the Board’s Decision.

15.In his affirmation in support of his application, the applicant simply asked the court to re-consider his case.

DISCUSSION

16.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).

17.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant confirmed that he had no complaint against the Board or the Board’s Decision.

18.The Court therefore 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.Since there is no merit in the applicant’s application, I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Also, the applicant has applied for leave to withdraw his application. I consider that his application should be approved by way of dismissal. 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