Amin Al v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1329/2019

[2024] HKCFI 929

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1329 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 24 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), his appeared before the Court on 15 January 2024.

The applicant

3.The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 12 March 2013.  The next day, he was arrested by the police as an illegal immigrant.  On 16 March 2013, he raised a torture claim.  However, he failed to complete the torture claim form within the time limit and his torture claim was treated as withdrawn on 23 May 2013. On 19 February 2014, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the people of Awami League (“AL”) including Imran and Masud as they wanted him to join the AL.

4.According to the applicant, he joined the Bangladesh Nationalist Party (“BNP”) in 2008 under the influence of his father and had been participating in activities which promoted the BNP.  Yet, the AL won the election and formed a government in January 2009.  The AL members had since then been using the processions to attack the BNP members.  In January 2009 and one day in mid-2010, the applicant and his father were attacked by the members of the AL, including Imran and Masud.  Their report to the police was of no avail.  One day around the end of 2011, the applicant was chased after by Imran and Masud in a local market.  He escaped by taking a bus to Dhaka and stayed with his friend.  While in Dhaka, in July or August 2012, the AL members attacked the applicant’s friend’s house.  They were assaulted and also threatened by the AL members.  Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 21 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:

(1)  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”);

(2)  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

(3)  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 applicant’s claimed risk of harm was assessed to be low [12]-[14]; (ii) state protection would be available to him [15]-[17]; and (iii) internal relocation was a viable option [18].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 15 February 2019, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [6].

8.The Board recapped the applicant’s claim and his personal background [26]-[36].  Having considered the evidence, the Board found that the applicant was not a witness of truth [40].  In particular, the Board identified several material inconsistencies in his claim [41], such as his association with the BNP [42]-[43], his activities as a BNP member [44], his problems with Imran and Masud [46]-[47], his evidence on what happened after the first incident [48], his evidence on the second attack [49], his evidence on the alleged hideouts after the attacks [50]-[51], and his evidence on the attack against him and his friend in Dhaka [52].  With regard to these inconsistencies, the applicant failed to offer any cogent explanations [53].  In addition, the Board also found that the applicant’s claim that he was a victim of many false cases was a fabrication and undermined his credibility [54].  In these premises, the Board refused to accept that the applicant would face any risk of harm from members of the AL due to his affiliation with the BNP.   

9.For the above reasons, 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 17 May 2019 for leave to apply for judicial review of the Board’s Decision.

11.The applicant has raised the grounds below to support his application:

(1)  he was an active member of Bangladesh Nationalist Party (“BNP”) and was targeted by the Awami League (“AL”);

(2)  the adjudicator did not listen his speech;

(3)  the interpreter was not a good man and the Board ignored his complaint and continued the proceedings despite his complaint;

(4)  the hearing bundle was in English, which he did not understand because he does not read or write English;

(5)  the interpreter did not interpret all his speech to the adjudicator, who did not understand is claim; and

(6)  the hearing was very short since the adjudicator did not give him the chance to clear his unclear speech.

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 he was free to speak before the Board.  He submitted that recently there was an election and his party did not win to become the ruling party.  Therefore, if he returns to his country, he will have problems.

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.As to the grounds in support of the application, Ground (1) is not relevant for the present purpose.  I shall deal with the other grounds, which concern the conduct of the proceedings by the Board.  In view of the applicant’s serious allegations, I shall set out the Board’s findings relating thereto for clarification.  In paragraph 38 of the Board’s Decision, the Board recorded:

“The Board is cognizant of the fact that the Appellant may be understandably bewildered, frightened and even desperate, that he may not understand the process or language spoken at various stages in the process and that this may affect the consistency and veracity of his evidence. What this means, in the words of Lord Justice Brook of the UK Court of Appeal, is that the Board must be careful so as not to exclude any matters from its consideration when assessing future risk unless it has no real doubt that they did not in fact occur, or, indeed, they are not occurring at present. Similarly, if an Appellant contends that the relevant matters did not happen, the Board should not exclude the possibility that they did not happen even where it believes that they probably did, unless it has no real doubt that they did in fact happen. However, the Board is not required to accept uncritically all of the allegations made by an Appellant, nor is the Board obliged to accept claims that are inconsistent with independent evidence regarding the situation in the Appellant’s country of nationality.”[1]

16.The Board had given its reasons in support of its findings of the facts of the case.

17.The applicant has not set out any specific evidence, which shows that the Board did not adhere to the approach above in its assessment of the applicant’s evidence or COI.  Therefore, I find that the applicant has not raised any valid ground 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 for the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.

Dated the 12^th day of April 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