Md Shahin Khan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1152/2019

[2023] HKCFI 2877

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1152 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 18 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 as a visitor on 8 February 2006 and was permitted to remain until 22 February 2006. However, he did not depart and had overstayed since 23 February 2006. On 13 December 2007, he was arrested by the police for overstaying. On 14 October 2008, he raised a torture claim. Upon the commencement of the unified screening mechanism, his torture claim was taken as a non-refoulement and was assessed on all applicable grounds. His claim was made on the basis that, if refouled, he would be harmed or killed by members of the Bangladesh National Party (“BNP”) because he refused to donate to the BNP.

4.The applicant claimed to be an ordinary member of the Awami League (“AL”) but he ceased to participate in the AL after he came to Hong Kong. The demands for him to donate to the BNP started in 1994 and continued to 1998. The applicant’s shop was frequently visited by the BNP members and thus his business was seriously disrupted. Initially, he would make some donations and only received verbal threats. In 1998, Selim, one of the members of the BNP who extorted the applicant, was killed. Since then, the applicant was visited more than twice a month by the BNP members and they pressurized him to confess to the murder of Selim. In 2001, the applicant had to close down his business.

5.To avoid the BNP members, the applicant escaped to different cities. In 2002, he learnt from his wife that the BNP visited his family members for his whereabouts. One day in 2005 when the applicant was waiting for bus to return to his home village, he was assaulted by seven to eight BNP members. Unable to tolerate the harassments, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 20 November 2014 by the Director (the “Director’s First Decision”).

The Director’s Decisions

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

a.  risk of torture under Part VII C 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”).

7.By way of the Director’s First Decision, the Director dismissed the applicant’s claim on Torture risk, BOR3 risk and Persecution risk. In elaboration, the Director found that (i) the applicant’s dispute with the BNP members was a private one without state involvement [15]; (ii) he was not severely injured by the BNP members [16]; (iii) state protection would be available to him [17]-[19]; and (iv) internal relocation was a viable option [20]-[24].

8.For reasons set out in the Notice of Further Decision dated 14 June 2017, the Director also found that the applicant’s right to life would not be violated and thus dismissed his claim on BOR 2 risk (the “Director’s Second Decision”).

9.The Director’s First Decision and the Director’s Second Decision will be referred to collectively as the “Director’s Decisions”.

The Board’s Decision

10.The applicant appealed the Director’s Decisions to the Board. The Board conducted an oral hearing for his appeal on 28 May 2015 and 23 July 2015 respectively, during which the applicant was legally represented and testified [6].

11.Having considered the evidence, the Board noted that, on the applicant’s own evidence, he was no longer a member of the AL or any other political parties; he only lodged his torture claim when he was detained; he had been out of his home country since 2006 and the threats, if any, would have been dissipated; he was brave enough to deny the false murder charge when confronted by the BNP members; he could relocate to other parts of the country to avoid the harassments; and internal relocation was a viable option for him [30]-[32]; [43].

12.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

13.The applicant has filed Form 86 dated 30 April 2019 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, the applicant said that the Board’s Decision is unreasonable in that it had failed to consider all the matters raised in his claim and /or give adequate reason for the its Decision.

DISCUSSION

15.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).

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

17.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.”

18.The Board, for the reasons given in paragraph 11, had given its views on the applicant’s situation that he should be under no real risk if he returns to his country. Furthermore, the Board found that state protection and alternative internal relocation are available to him.

19.Those grounds in paragraph 14 are not valid reasons from to challenge the Board’s Decision as they are either the applicant’s opinion without evidence to support or the Board had given its reasons in support of its views.

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

CONCLUSION

21.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 21^st 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