Kazi Asaduzzaman v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 990/2019

[2023] HKCFI 2507

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 990 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.

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 requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing date was fixed and the applicant appeared before the Court on 30 January 2023.

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 10 April 2016.  On 5 May 2016, he surrendered to the Immigration Department.   On 7 July 2016, 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”).

5.According to the applicant, he became a member of the Bangladesh Nationalist Party (“BNP”) in about 2010.  One day in around 2012, when the applicant attended a meeting held by the BNP president for Chitalmari, around 30 to 40 AL members stormed in carrying wooden sticks.  They were accompanied by around 10 to 12 armed police officers from the Chitalmari police station. The group started to assault the BNP members.  The applicant was beaten to unconsciousness.  When he regained consciousness, he received medical treatments.  A few months after the assault, the police visited the applicant’s house looking for him.  Meanwhile, some AL members also looked for the applicant, threatening to kill him if he continued to work for the BNP. 

6.One day in August or September 2013, the applicant heard from his friend that a neighbor in his village died and that the police intended to arrest him for the murder of his neighbor.  He believed that this was a framed case by the AL members.  Thus, the applicant moved to other village, where he learnt that the AL members and the police were still looking for him.  Out of fear, the applicant eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraphs 6 to 21 of the Notice of Decision dated 12 July 2017 by the Director (the “Director’s Decision”).     

The Director’s Decision

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

(1)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)  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”);

(3)  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

(4)  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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that (i) there was no sever pain or suffering that attained a minimum level of severity [35]-[37]; (ii) there was no official involvement [38]-[48]; (iii) the risk of subject to ill-treatment upon his return was assessed to be low [49]-[60]; (iv) state protection would be available to him [61]-[65]; and (v) internal relocation was a viable option [66]-[71]. 

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board.  On 12 November 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter in the Bengali and English languages [7]. 

10.The Board recapped the applicant’s claim and personal background [28]-[38].  Having considered the evidence, the Board found that the applicant’s claim was not credible as his evidence on the key events was full of unexplained significant inconstancies [43].  In particular, the Board noted that the applicant’s evidence on his BNP membership was inconsistent [44]-[49].  It also noted that the applicant raised some new claims.  For example, the applicant claimed that he was framed by the AL members in 21 or 22 false cases whilst he only stated that he was framed in a murder case before the Director.  Yet, he was unable to provide the details of these cases and failed to provide cogent explanations as to why he left these cases out before the Director [51]-[53].  He also provided different names of the murder victims, an inconsistency which led the Board to place limited weight on this evidence [54]-[55]. 

11.Meanwhile, he also raised a new claim that he was arrested, detained and/or assisted by the lawyer in one or several of the false cases against him.  Nevertheless, when inquired about the details of these cases and court proceedings, the applicant gave vague answers.  He also failed to provide any reasons of his failure to mention these arrests and detentions to the Director [56]-[57].  In these premises, the Board refused to accept this new claim as credible [58].  The Board also gave limited weight to the document provided by the applicant because of his failure to mention the significant details before the Director and had provided contradictory evidence [59].

12.Besides, the applicant also contradicted himself in describing the events of assaults [60]-[62].  As to the applicant’s new claim about owing a fish wholesale business which was forcibly taken by the AL members, the Board also rejected it as, together with the unexplained concerns about this new claim, he also failed to explain why he did not raise it before the Director [66]. 

13.In light of the aforesaid, and the other discrepancies described at paragraphs 67 to 68 of the Director’s Decision, as well as considering the country of origin information, the Board concluded that the applicant’s evidence in relation to the key events and aspects of his claim was in great doubts [69]-[83].       

14.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

15.The applicant has filed Form 86 dated 11 April 2019 for leave to apply for judicial review of the Board’s Decision.

16.In his affirmation in support of his application, the applicant reiterated the reasons he came to Hong Kong and said that the Board had not considered his case properly.

DISCUSSION

17.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).

18.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he wanted to stay here. But he could not say that the Board was wrong in its decision.

19.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.”

20.The Board, for the reasons given above, did not believe his evidence on the facts of the applicant’s case. The applicant has not raised any valid ground to challenge the Board’s Decision.

21.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.

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

CONCLUSION

23.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 12^th day of October 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