Islam Shahidul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1235/2019

[2024] HKCFI 116

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1235 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.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 25 April 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 asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, he appeared before the Court on 26 April 2023.

The applicant

3.The applicant is a national of Bangladesh. He entered Hong Kong illegally on 14 February 2016 and was arrested by the police on the same date. On 5 March 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”) as he was an active member of the Bangladesh Nationalist Party (“BNP”).

4.According to the applicant, he had been an active member of the BNP since 2012. He would participate in the party’s gatherings and rallies. His dispute with the AL started in 2013 when the AL members constantly visited his shop and asked him to join the AL. On three occasions, the applicant declined their requests. He was only assaulted and injured in the incident on 16 May 2013. At the end of 2013, the applicant went to his friend’s house in Dhaka for three months and nothing eventful happened. Afterwards, he returned home.

5.One day in February 2014, around twelve AL members came to the applicant’s shop with weapons. They beat the applicant with bamboo sticks, destroyed his properties and left. The applicant’s father reported to the police but failed. Then, the applicant went to Dhaka and hid for six months.

6.In 2015, the AL members located the applicant in his friend’s house and slapped him. They gave the applicant time to reconsider his decision. Out of fear, he fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 26 July 2018 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:

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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the low frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[14]; (ii) state protection would be available to him [15]; and (iii) internal relocation was also a viable option [16].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 7 March 2019, the Board conducted an oral hearing for his appeal, during which he was assisted by a Bengali interpreter [6].

10.The Board recapped the applicant’s claim and his personal background [27]-[50]. Having considered the evidence, the Board made the following findings. It noted that the applicant was evasive in giving oral testimonies. For example, he changed his evidence as to who was the shop owner [55]. It found that the applicant was merely an ordinary supporter of no significant position with the BNP [56]; that his evidence on the alleged three visits to his shop was inconsistent and implausible [57]; and that his evidence on the alleged attacks was also inconsistent and implausible [58]-[61]. In these circumstances, the Board concluded that the applicant had suffered no harm in the past [62]-[63].

11.Meanwhile, while the Board accepted that there would be harassments against the opposition supporters by the authorities and the AL, it found that there was no ground to believe that the applicant would face real or substantial risk of harm and that his conducts were inconsistent with someone who feared a risk of harm [64]-[67]. In any event, state protection would be available to him [71] and internal relocation was also a viable option [88]-[94].

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

12.The applicant has filed Form 86 dated 8 May 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation and in support of his application, the applicant said that he was not given the chance to put forward his submissions before the Board because the hearing bundle was given to him shortly before the hearing and he was not invited to make written submissions. Also, he was not given an opportunity to reply to the submissions by the representative of the Director.

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. Before me, he said that he has a wife in Hong Kong and he has nothing more to add to his submission.

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.Though the Board accepted that he had been harassed by the AL members, for the reasons stated in paragraph 10, supra, it did not accept that the applicant would be subjected to any real risk of harm by the AL members if he returns to his own country.

18.The applicant has failed to give any valid reason to challenge the Board’s Decision. If he did not have enough time for prepare for the hearing before the Board, he should have asked for time before the Board, which he did not do. It is unnecessary for the Board to invite him to make submissions to it. He should be at liberty of doing so if he so wished.

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 January 2024

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