Mir Md Aolad Hossen v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1395/2019

[2024] HKCFI 455

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1395 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 17 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 asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, he appeared before the Court on 2 August 2023.

The applicant

3.The applicant is a national of Bangladesh.  He was arrested by the police on 3 June 2014 and admitted that he had illegally entered Hong Kong via Mainland China on the same day.  He raised a non-refoulement claim on 7 June 2014 on the basis that he would be harmed or killed by members of the Awami League (“AL”) as he was a member of the Jamaate Islamic Party (“JIP”), an opposing political party.  

4.In brevity, the applicant joined the JIP in 2008 and became a secretary of the JIP in his home village.  When the AL won the general election in 2014, it began to oppress members who belonged to opposition parties, including the JIP.  The applicant was attacked on three occasions, the first occurred about five or six days after the election.  He had just come out from the mosque when he was attacked from behind.  His head was bleeding and he suffered a syncope. Upon regaining consciousness, he was told it was members of the AL who attacked him.  The second incident happened five to seven days after the first incident.  The applicant was attending a rally protesting against the AL when he was attacked by members of the AL with weapons.  He was stabbed and had to receive stitches for his wounds.  He attempted to report the matter to the police but they refused to take on his case.  The last incident occurred ten to twelve days after the second incident.  The applicant held another rally similar to the previous incident.  Members of the AL again attacked him and he was beaten with sticks.  In fleeing, the applicant attempted to relocate to Dhaka and Chorkholipha but was ultimately located by the AL.  He therefore decided to leave Bangladesh and made arrangements to go to China, and subsequently to Hong Kong.  Details of his claim are set out at [6] of the Notice of Decision dated 15 June 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 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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that: (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13i]; (ii) the acts by members of the AL did not intend to cause serious or permanent bodily harm [13v]; (iii) even assuming the AL had intentions to kill him, there was no evidence that they have the abilities and resources to trace him everywhere in Bangladesh [13vii]; (iv) state protection would be available to him [14] – [18]; and (v) internal relocation was available and reasonable, which further lowered or negated the perceived risk [19] – [21].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 27 September 2018, the Board conducted an oral hearing for his appeal, during which he testified [56].

8.The Board recapitulated the applicant’s claim and his personal background [7] – [55].  Having considered all the evidence, the Board found the applicant was not a witness of truth and rejected the entirety of his claim. [122] and [123].  In particular, the Board held there were numerous inconsistencies in the applicant’s evidence, such as his testimony of when he joined the JIP.  In his written statement before the Director, he claimed he began to have trouble after the AL came to power in 2014, however, this was against credible and objective country of origin information obtained by the Board evidencing the AL was already in power since 2009 [76] – [77].  The applicant’s own position in the JIP was also scrutinized.  He claimed he was a secretary to the Director but at the hearing, he stated he was an assistant secretary.  This change of story did not sit well with the Board [82].  Another example of inconsistent evidence was the omission of the third attack incident by members of the AL [96].  The applicant failed to mention this entire incident and only spoke of two incidents at the hearing; his attempt to explain his omission was not accepted by the Board [97] and [98].  He further gave unsatisfactory evidence in regard to the duration of his stay in Dhaka, which further reflected poorly on his credibility [106] – [112].  Having considered also the applicable grounds, the Board found the applicant was not entitled to non-refoulement protection [132] – [166].

9.In conclusion, 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 23 May 2019 for leave to apply for judicial review of the Board’s Decision.

11.In the applicant’s affirmation in support of his application, the applicant did not raise any specific ground.

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. Before me, the applicant said that he was at liberty to give evidence before the Board and he did not think that the Board was wrong in its Decision.

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

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

CONCLUSION

17.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 23^rd day of February 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