Himanshu Kumar Bhowmick v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1387/2019

[2024] HKCFI 265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1387 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.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 30 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, a hearing was fixed for the application to be heard on 31 July 2023.  However, the applicant was absent without prior notice to the Court.  I shall deal with the application on paper.

The applicant

3.The applicant is a national of Bangladesh.  He was arrested by the police for illegally remaining in Hong Kong on 2 October 2008.  He admitted he illegally entered Hong Kong via the Mainland in May 2007.  He raised a torture claim on 4 October 2008 which was rejected on 18 November 2013.  On 17 December 2013, he further lodged a non-refoulement claim by way of written signification on the basis that, if refouled, he would be harmed or killed by a group of members of the Bangladesh Nationalist Party (“BNP”) because he was a member of the Awami League (“AL”).  In light of his previous torture claim, the applicant’s non-refoulement claim was assessed on all applicable grounds except Torture risk^[1].

4.In short, the applicant claimed he had been a supporter of AL since the mid-1980s.  As he helped AL to organize rallies in actively promoting the party, he was targeted by a member of parliament of BNP (“Abul Khair Bhuiyan”).  On one afternoon in 2003, the applicant was ambushed by a group of men, one of whom he recognized was a member of the BNP.  The applicant was severely beaten during the attack and had to receive stitches in the hospital. After this incident, members of the BNP would come to his shop from time to time to harass him and extort money.  He believed the previous attack incident and the constant harassment were Bhuiyan’s doing as the perpetrators involved worked for Bhuiyan.  However, the applicant did not report to the police as he was in fear there would receive retaliation from the BNP.  From April 2004 to 2007, he fled his home village and moved around in Bangladesh as the BNP had falsely accused him of the murder of a BNP member.  Fearing for his life, the applicant decided to leave Bangladesh for Hong Kong.   Details of his claim are set out at [9] of the Notice of Decision dated 13 July 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

5.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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that: (i) the absence or low intensity and frequency of past ill-treatment from the BNP members is indicative of a small risk of harm upon his return to Bangladesh [20b]; (ii) there was no indication that the Bangladeshi police or any other authorities will take action against him [20d]; (iii)  the dispute between him/his family with the BNP was private in nature [20e]; (iv) state protection is readily available to him in Bangladesh [21]; and (v) internal relocation in Bangladesh will be an viable option for him [22].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 19 February 2019, the Board conducted an oral hearing for his appeal, during which he testified [41].

8.The Board considered the applicant’s evidence and held that: (i) he was not a witness of truth and had fabricated his claim due to a number of significant and fundamental differences between the written statements and his oral evidence [42] and [43]; (ii) in particular, the Board did not accept he was ever a member of the AL as he could not even recall the year when he joined the party, and had named an entity in the AL that belonged to the BNP instead [44] and [45]; (iii) in light of his evidence, the Board did not accept the BNP or Bhuiyan was targeting him for his political activities [47] – [50];  (iv) similarly, the Board further did not accept he was falsely accused of the murder of a BNP member as he was unable to adduce any supporting documents, or that he had to flee to other parts of Bangladesh fearing for his life [51] and [52]; and (v) his claim that he was targeted by the BNP and Bhuiyan as he was Hindu was rejected as this issue was not raised before the Director nor in any documents submitted.  The Board held that the applicant had simply concocted this religious claim at the hearing [54].

9.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

10.The applicant has filed Form 86 dated 22 May 2019 for leave to apply for judicial review of the Board’s Decision.

11.The applicant has raised the grounds below in support of his application.

(1)  The adjudicator had unlawfully fettered her discretion by refusing his appeal on the grounds that they did not satisfy the requirement.

(2)  The adjudicator acted in procedurally unfair manner in dealing with his appeal.

(3)  The Board’s Decision was unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness.

(4)  The Board failed to meet the greater care and duty owed to a self-represented claimant.  He was not advised to submit written submissions.  The Board had relied on the source of news which is not officially recognized or it is simply hearsay.  It had also relied on some cases which are fairly outdated considering the dramatic changes.  The lack of credible source of information has resulted in it making groundless speculations that it is safe for him to return to his country of origin.

DISCUSSION

12.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).

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

14.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.”

15.The Board had, for the reasons given in paragraph 8, rejected the applicant’s evidence.  Most of the grounds in paragraph 11 in support of his application are general and bare assertions without any evidence in support.  The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.”

16.The Board has no duty to advise him to submit written submissions.  Up to date, the applicant has not raised any written submissions in support of his application.

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

CONCLUSION

18.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.

Dated the 30^th 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

[1] risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115