Bepari Mithun v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2290/2019

[2024] HKCFI 287

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2290 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.

Observation for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 25 July 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.As the applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a hearing date of 6 September 2023 was fixed for him to appear before the Court. However, he was absent without prior to the Court. His application is therefore dealt with 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.  On 21 December 2015, he was arrested by the police for illegally remaining in Hong Kong.  Upon being transferred to the Immigration Department for further investigation, he admitted he entered Hong Kong illegally via Mainland China on the same day. Subsequently, he raised a non-refoulement claim on 26 December 2015 on the basis that he will be harmed or killed by members of the Bangladesh Awami League (the “AL”) as he was in an opposition party, the Bangladesh Nationalist Party (the “BNP”) if he is refouled.  

5.In short, the applicant claimed he joined the BNP in 2000 as his parents were also supporters of the party.  In 2002, he joined the student wing of the BNP to garner support from students by convincing them to join the BNP.  He was selected as a general secretary of the student wing in 2012 and his duties included organizing rallies and meetings, and giving instructions to BNP workers.  According to the applicant, he was attacked by members of the AL in around November 2013 whilst on his way home.  As he refused to join the party, the attackers beat him with wooden sticks for two to five minutes. However, he did not require hospitalization for his injuries nor did he report the incident to the police.  Upon contacting the leaders of his own party, he was advised to flee the country as he was no longer safe.  He therefore immediately relocated to his friend’s place in Dhaka and moved to various locations thereafter.  He did not encounter any problems whilst being transient and he was able to leave Bangladesh for Mainland China on 17 December 2015.  Details of the applicant’s claim are set out at paragraph 6 of the Notice of Decision dated 21 September 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that: (i) the risk of harm from the AL upon the applicant’s return to Bangladesh was low, as the Director found the information put forth by him to be vague, such as his inability to explain political ideas/agendas of his own political party [13]; (ii) there was low intensity and low frequency of ill-treatment from members of the AL as he was only attacked and wounded once [14]; his perceived risk of harm was low in any event, based on his own facts as nothing eventful occurred whilst he was hiding from the AL, which indicated they had no intention to carry out their threats [15]; (iii) state protection was available, [17] - [20]; and (iv) internal relocation alternatives were reasonable [22] - [26]. 

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 6 May 2019, the Board conducted an oral hearing for his appeal, during which he gave evidence with the assistance of an interpreter.

9.In short, the Board rejected the entirety of the applicant’s claim that he was ever involved in the BNP or participated in the BNP, or was ever assaulted by members of the AL due to his support for the BNP [48].  The Board did not accept the applicant was a credible witness for several reasons: (i) he gave inconsistent information regarding his involvement with the BNP, such as the date of joining, which he stated to Director was in 2002 but was changed to 2007 at Board’s hearing [38]; and deposing new information for the first time at the hearing and retracting them when the Board sought clarifications [39]; and (ii) his assault by members of the AL was also highly inconsistent, such as that he had been assaulted fourth times before and after a general election in 2014, but was unable to provide any further details of these incidents, and claimed he had forgotten to mention them previously to the Director [42] – [47].  In light of these findings, the Board rejected the factual matrices of the applicant’s claim and held there is no real risk to him if he is refouled.

10.The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

11.The applicant has filed Form 86 dated 9 August 2019 for leave to apply for judicial review of the Board’s Decision.

12.In support of his application, the applicant did not raise any specific ground.

DISCUSSION

13.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).

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

15.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.”

16.The Board had, for the reasons given in paragraph 9, rejected the applicant’s evidence on the facts of his claim. The Board was entitled to make such findings.

17.There is no valid ground from the applicant to challenge the Board’s Decision.

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

CONCLUSION

19.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