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

HCAL 1332/2019

[2024] HKCFI 787

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1332 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 15 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, a hearing was scheduled to be heard on 11 July 2023. However, he was absent without prior notice to the Court. His application is therefore to be 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 Bangladeshi. He had previously entered Hong Kong via Mainland China on 2 July 2006 and was permitted to remain as a visitor until 16 July 2006. He did not depart thereafter and was arrested by the police on 25 April 2007 for overstaying. He raised a torture claim on 17 May 2007 which was rejected by the Director on 28 September 2011. His subsequent appeal to the Board was dismissed on 14 December 2011. He was repatriated to Bangladesh on 13 January 2012. On 8 August 2013, he was arrested again by the police in Hong Kong for being an illegal immigrant. Upon enquiry by the Immigration Department, he admitted he entered Hong Kong illegally via Mainland China on 5 August 2013. He lodged a non-refoulement claim on 25 April 2015 on the basis that he would be harmed or killed by an individual (Afaz Uddin) as he refused to work for the Awami League (“AL”).

5.In brevity, the applicant claimed he joined the AL as a general member in 1995. He was assaulted by members of an opposing party, the Bangladesh Nationalist Party (“BNP”) in late 2005 for refusing to join them. He was assaulted and required hospitalization but did not report this matter to the police as he was scared he would be killed. In light of the dire situation, he fled Bangladesh and came to Hong Kong in 2006. After he was repatriated to Bangladesh, he was no longer targeted by the BNP and he had also stopped working for the AL. About three to five months after the applicant’s return, Afaz (president of the Awami Club in his local area) contacted him to invite him to continue to support and work for the AL. However, he refused Afaz’s request as he thought it might be dangerous. Afaz therefore threatened him and he ultimately acquiesced to join the AL. He was not physically injured during this incident. When Afaz met the applicant’s father one day on the street, he also threatened to kill the applicant if he refused to work for the AL. In fear of Afaz’s threats, the applicant relocated to another region in Bangladesh. With the help of his father, he made further arrangements to go to Hong Kong via Mainland China. Details of the applicants’ claims are set out at [7] of the Notice of Decision dated 17 July 2018 (the “Director’s Decision”).

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

(1)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”) notwithstanding his previous torture claim which was rejected;

(2)  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”);

(3)  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

(4)  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 low intensity and frequency of past ill-treatment by Afaz indicated there was a small future risk of harm if he was refouled to Bangladesh; and in addition, as demonstrated by his own facts, he was not harmed when he returned to Bangladesh in 2012 [14]; (ii) as to his political position, he was only a general member of AL in the past and given the passage of time, it is unlikely Afaz still habours any adverse interest against him, thus diminishing the perceived risk of harm [15]; (iii) state protection was available which further lowered or negated the level of risk [17] – [20]; and (iv) internal relocation was a viable option [21] – [25].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 26 April 2019, the Board conducted an oral hearing for his appeal, during which he testify and answered questions from the Board.

9.Having considered all the evidence, the Board, for the reasons given in paragraphs 41 – 47, found:

“40. I found after considering all the written and oral evidence in this appeal that the Appellant had not proved his claim on the balance of probabilities. I found that the Appellant’s claim lacked credibility, it had inconsistencies and it did not stand up to; scrutiny. I also found from his claim that he had not come to Hong Kong on 2013 for the purpose of seeking non-refoulement protection….”

10.The Board had also found that internal relocation was a reasonable alternative for the applicant. [100]

11.In light of its findings above, the Board dismissed the applicant’s appeal under all applicable grounds and confirmed the Director’s Decision.

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

12.The applicant has filed Form 86 dated 17 May 2019 for leave to apply for judicial review of the Board’s Decision.

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

(1)  The hearing bundle was given to him shortly before the hearing and he did not have sufficient time to prepare his case, resulting in being confused at the hearing. However, he had answered the Board’s questions.

(2)  There was no interpretation service for the hearing bundle with documents in English.

(3)  The Board did not notify him of its decisions on phone despite specific request from him.

(4)  The Board had relied upon source of news which is not recognized officially or it is simply hearsay. It had also relied on outdated information, resulting in groundless speculation that it is safe for him to return to his home country.

(5)  His claim on BOR 2 risk was considered without the screening process.

(6)  The Board’s Decision was reached without the adjudicator going to his country to understand the real situation there.

DISCUSSION

14.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).

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

16.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.”

17.As to the applicant’s grounds in support of his application, they fail for the reasons that:

(1)  Ground (1): this is doubtful as he had never applied to the Board for adjournment and he was able to answer the Board’s questions;

(2)  Ground (2): this is not a valid ground as the Court of Appeal had held that he was not entitled to interpretation service at all times;[1]

(3)  Ground (3): the Board has no statutory duty to inform him by phone, even upon his request;

(4)  Ground (4): this is only his bare assertion or comment without any evidence in support;

(5)  Ground (5): this is not true as his claim on all applicable grounds was considered together after the screening process by the immigration officer; and

(6)  Ground (6): it is unnecessary for the Director or the adjudicator to go to his country physically as they may rely on the COI.

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 27^th day of March 2023

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