Mia Manik v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1433/2019

[2024] HKCFI 809

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1433 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 oral submissions by the Applicant 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 9 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 did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

The applicant

3.The applicant, aged 34, is a national of Bangladesh. He entered Hong Kong illegally from Mainland China on 7 February 2016 and was arrested by the police on the same day.  The applicant made a non-refoulement claim on 16 February 2016.  The claim was made on the basis that, if refouled, the applicant would be harmed or even killed by members of the Awami League (“AL”) because he refused quitting Bangladesh Nationalist Party (“BNP”) to join AL.

4.According to the applicant, he joined the BNP as an ordinary member in 2005. The applicant claimed to be an active member of BNP, which caused the attention of AL members. In about March 2014, the applicant was threatened by AL members that he would have problems if he did not quit BNP to join AL. In early 2015, while the applicant and several BNP members were inspecting the land they intended to buy, a number of AL members confronted them. This led to an intense argument that ended up in a fight between the two groups (“the land dispute”). The applicant suffered from bruises and swelling all over his body, but he merely bought some medicine himself without receiving any medical treatment. Some time later in the same month, AL members sought revenge and assaulted his nephew with wooden sticks. His nephew suffered serious injury as a result and was taken to hospital for treatment. The applicant reported the assault incident of his nephew to the police, but was informed that nothing could be done, as the assaulters were AL members.

5.In order to avoid the danger and to save his life, the applicant moved to his sister’s home a few days after the assault of his nephew. While staying there, he received threatening phone calls from AL members. He then moved to stay with another sister, but continued to receive threatening phone calls for some months. He also heard that AL members were searching for his whereabouts at his hometown during his stay with his two sisters. In December 2015, the applicant fled to India out of fear, but returned to Bangladesh a few days later because he did not feel safe there. Eventually, he left Bangladesh for China on 30 January 2016 and sneaked into Hong Kong by sea on 7 February 2016.

6.The applicant was of the view that he could not seek state protection given that AL is the ruling party in Bangladesh. He had tried to report the assault of his nephew to the police, but nothing could be done. He also believed internal relocation within Bangladesh not viable because AL members could still locate him given their extensive network throughout the country. 

7.Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 28 May 2018 (“the Director’s Decision”).

The Director’s Decision

8.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”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that (i) the low intensity and frequency of past ill-treatment from the AL members is indicative of a small future risk of harm upon his return to Bangladesh [12]-[15]; (ii) state protection will be available to him upon his return [16]; (iii) internal relocation is viable [17]] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2, BOR 3 risk [18]-[23], Persecution risk [24]-[28] or Torture risk [29]-[32].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board.  On 18 January 2019, the Board conducted an oral hearing with an interpreter.   

11.Having considered the applicant’s evidence, the Board considered that the applicant was a witness of truth and was convinced that he could not effectively seek protection from the local police. However, given that the applicant was only an ordinary BNP member playing a minimal role, the Board was of the view that he faced no real risk of serious harm and the land dispute was merely a commercial rather than a political matter. In any event, the Board considered that internal relocation is a feasible option for the applicant [24]-[59].

12.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirement under Persecution risk [60]-[62], BOR 2, BOR 3 risk [63] or Torture risk [64]. 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

13.The applicant has filed Form 86 dated 27 May 2019 for leave to apply for judicial review of the Board’s Decision.

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

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 had carefully considered the applicant’s evidence in relation to his claim. Having considered his evidence, the Board concluded that he is a reliable witness. The Board then proceeded to consider whether he will be subjected to any real risk of being harmed or killed by his enemies upon his return to Bangladesh. It came to the conclusion below.

“35. Crucially, the appellant confirmed that all of the other six young men involved in the land dispute on his side remain in Bangladesh, including his nephew who had been attacked once while the appellant was in the country and once since he left. Despite those attacks he remains safely in Bangladesh now.

36. In those circumstances, it does not appear to me to be reasonably likely there would be any reason at all for those who targeted the appellant in the context of the land dispute at the time, in which the appellant’s political involvement was only of marginal relevance even then, to show any interest in him now.

37. Indeed, since the group headed by Moslim Uddin has not sought any serious revenge against the other six involved in the fight in 2015, my judgment is there is no reason to suppose they intend any harm to the appellant now. Furthermore, he is not a political activist, had no position within the BNP and is not known outside his very local area.

38. Furthermore, no threats have been made against him since 2015, no active interest has been shown in him since he left his home area and his family members, on his own evidence, have not experienced any difficulties.

39. In my judgment, therefore, the risk to the appellant in his local area from non-state actors of harm in the form of local AL activists is far-fetched and falls below that which could be categorized as a real risk.”

19.There is no valid reason from the applicant to challenge the findings of the Board. The applicant therefore 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 15^th day of March 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