Md Serajul Munir Alias Munir Abms v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1225/2019

[2023] HKCFI 2698

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1225 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.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 2 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

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

The applicant

4.The applicant is a national of Bangladesh. He entered Hong Kong illegally on 5 November 2016. On 11 April 2017, he surrendered to the Immigration Department. On 10 August 2017, 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”) because of his involvement with the Jamaat-e-Islami (“JEI”) and the Pragatisheel Ganatantrik Shakti (“PGS”).

5.According to the applicant, in 1975, his neighbour Rashid Khan organized a coup against the then president and killed the president’s whole family. Rashid took over the power and supported the succeeding president. It was a proud moment for the applicant’s locality as his neighbour became the core ruling power of the country. Subsequently, Rashid intended to form a political group called PGS and his family solicited the applicant’s help. The applicant was active in participating in the formation of the party. However, the work for PGS suspended after Rashid declared his support for the Bangladesh freedom party.

6.In 1996, the AL came into power and Rashid was arrested for killing the former president. Rashid’s arrest worried the applicant that he would get into troubles by supporting the PGS. Thus, he had been moving around the country. Meanwhile, the applicant began supporting the JEI. In 2004, the applicant was informed by his college mate that the AL framed a false case against him because they held a grudge of his support of the PGS and the JEI. The applicant was not aware of the charge and he was not summoned to the court.

7.In mid-2009, the applicant was attacked by a group of AL members with bare hand and a hard object. He was later treated with stiches, medicine and injections. The village elders held a mediation meeting between the applicant and the AL leaders. The result of the meeting was that the applicant paid the AL money and started to cast votes for them.

8.However, in late 2015, the applicant received phone calls of extortion again. The AL members demanded money from him in exchange for the cease of further attacks. The applicant could only afford a partial sum and the threats were temporarily stopped. Yet, in late 2016, the AL members started to demand money from the applicant again. This time, he could not afford the payments. Feared that the AL would harm or kill him in light of the non-payments, the applicant fled to Hong Kong for protection. While in Hong Kong, his family advised him to return only after the AL stepped down. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 28 June 2018 by the Director (the “Director’s Decision”).  

The Director’s Decision

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

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

b.  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”);

c.  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

d.  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”).

10.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) his claimed ill-treatments from the AL members were not as imminent and foreseeable as alleged [11]; (ii) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]; (iii) state protection would be available to him [13]; and (iv) internal relocation was a viable option [14]-[15].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board. On 17 April 2019, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of an interpreter.

12.The Board recapped the applicant’s personal background and his claim [9]-[28]. Having considered the evidence, the Board made the following findings. First, the Board rejected the applicant’s claim that the AL members had filed a false case against him [32]-[34]. Second, it also rejected the applicant’s assertion that he had been moving around the country to avoid any potential risk of harm [35]. Third, it further refused to accept that the applicant was demanded to pay the money to the AL and he escaped the country due to his inability to pay the sums [36]-[37]. Fourth, the applicant’s immigration history to Hong Kong also undermined his credibility in seeking a non-refoulement protection [38]-[41]. In addition, the Board found that the applicant was not adversely targeted by the Bangladeshi government [63]; that the AL had no intention to track him down nationwide [64]; that the applicant’s family was not sought or harmed by the AL [65]; that the alleged injuries failed to attain a minimum level of severity [67]; and that the applicant could relocate to other areas safely [68]; [101]-[115].   

13.For the above 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

14.The applicant has filed Form 86 dated 7 May 2019 for leave to apply for judicial review of the Board’s Decision.

15.In his affirmation in support of this application, he said his life is still in danger in his country.

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.

18.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.”

19.The Board, for the reasons it had given in the Board’s Decision, did not accept the facts in support of his claim. See paragraph 12 above. There is no valid ground from the applicant to challenge the Board’s Decision.

20.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.

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

CONCLUSION

22.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 7^th day of November 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