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

HCAL 1277/2019

[2024] HKCFI 791

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1277 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:

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 23 January 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision. His application was filed on 10 May 2019, which is more than one year from the date of the Board’s Decision. This issue will be dealt with below.

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 35, is a national of Bangladesh. He entered Hong Kong illegally from Mainland China on 27 April 2013. He was arrested by the police on 30 April 2013 for remaining illegally in Hong Kong. The applicant made a torture claim on 2 May 2013, which was rejected on 8 November 2013. His subsequent petition was also rejected. On 11 March 2014 and 4 May 2017, the applicant made a non-refoulement claim on all applicable grounds other than Torture risk[1]. The non-refoulement claim was made on the basis that, if refouled, the applicant would be ill-treated or even killed by the members of the Awami League (“AL”).

4.According to the applicant, he joined the student wing of Jamaat-e-Islami (“Jamaat”) named Chhatra Shibir (“CS”) in 2009. He later worked at ward level of the party after entering Srinagar Government College. The applicant claimed to be a very active member and he managed to persuade many people from his village to join Jamaat. His success in recruiting new supporters, however, made him become the main target of discontent from the AL.

5.In mid-2009, the applicant was threatened by AL members that he would be killed if he did not quit CS and join AL. A month later, a group of 10 to 12 AL members assaulted him after he refused to cancel a CS meeting. He visited a private doctor after the assault, but did not report the incident to the police. Between January 2010 and February 2011, the applicant was chased by AL members on three occasions. He also received death threats over the phone from AL members. In February 2011, he moved to live in another city. A few days before the relocation, the police attended his home and produced a warrant for his arrest on a charge of attempted murder during a fighting incident. The applicant was not at home at the material time and hence never saw the warrant. He believed that the warrant was issued as a result of false allegation made against him by the AL members.

6.In May 2012, after the applicant resumed an active role in CS upon enrolling in the Shuraward Government College, he received death threats from AL members again. On 21 February 2013, the applicant and two of his friends were attacked by a group of AL members. He visited a private doctor after the assault, but again did not report the incident to the police.

7.After the assault incident in February 2013, the applicant’s family members decided that he should leave Bangladesh for his safety. His uncle contacted an agent to make all the arrangements. Eventually, he left Bangladesh for China on 26 March 2013 and he sneaked into Hong Kong illegally by boat on 27 April 2013. The applicant maintained contact with his family members after his arrival in Hong Kong, who informed him that AL members were asking for his whereabouts and threatened to kill him twice. He also received threatening Facebook messages from AL members. In March 2017, his paternal uncle informed him that AL members attacked his house several times.

8.The applicant was of the view that the police could not assist him because they are under the influence of AL, which is the ruling party in Bangladesh. He also considered that he would not be safe relocating to other places within Bangladesh and that he would be killed if he stepped into Bangladesh airport.

9.Details of the applicant’s story can be found in paragraphs 9-11 of the Director’s Decision dated 29 May 2017 (“the Director’s Decision”).

The Director’s Decision

10.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”).

11.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the low frequency and intensity of ill-treatment from the AL members in the past is indicative of a small future risk of harm upon his return to Bangladesh [22]-[25]; (ii) state protection will be available to him upon his return [26]; (iii) internal relocation is viable [27]] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2, BOR 3 risk [28]-[33] or Persecution risk [34]-[38].

The Board’s Decision

12.The applicant appealed the Director’s Decision to the Board. On 29 November 2017, the Board conducted an oral hearing with an interpreter.

13.Although the Director’s Decision did not deal with the Torture risk, the Board considered that the supplementary claim included matters that arose only after conclusion of the torture claim and hence had not been considered. The Board therefore assessed the applicant’s appeal based on Torture risk as well [63].

14.The Board considered the applicant’s evidence consisted of a series of bald assertions without any reliable support. Because of the inconsistencies of his evidence, which he was unable to explain to it, the Board had doubts on the overall credibility of the applicant, particularly in relation to the time he obtained his passport/visa and the identity of the AL member who threatened him on Facebook [73]-[83]. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirement under Persecution risk, Torture risk, BOR 2 or BOR 3 risk [84]-[87]. In any event, even if the applicant’s case were accepted, he would still fail to establish a case in respect of any of these applicable grounds [97]-[107]. Furthermore, state protection and internal relocation were also available to the applicant [91]-[96], [108]-[110].

15.For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s decision.

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

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

17.In the applicant’s affirmation in support of his application, the applicant said that the Board failed to consider all the matters raised in his claim or give adequate reason for its decisions.

DISCUSSION

18.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

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

20.For the reasons given, the Board concluded:

“82. … … After assessing his claims in the round, in view of the above multiple significant inconsistencies and other problems with his account, I find the Appellant not a credible witness. I am not persuaded, even to the low standard required, that the material events and the conditions he has described in Bangladesh, upon which his claim is based, are factually accurate. … I consider that he has fabricated these claims so as to create a basis upon which to apply for non refoulement.”

21.The reasons raised in paragraph 17 are not valid to challenge the Board’s Decision. The Board had carefully considered the applicant’s case and it had given good reasons for its decisions. There is no reason for the Court to interfere with the Board’s Decision.

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

CONCLUSION

23.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 25^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