Rana Shahel v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1293/2019

[2024] HKCFI 1115

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1293 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 26 April 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.

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 Bangladesh.  He was arrested by the police on 14 May 2013 for illegally remaining in Hong Kong and, upon investigation, admitted he illegally entered Hong Kong via Shenzhen on 9 May 2013.  He lodged a torture claim on 18 and 30 May 2013 and further made a non-refoulement claim on 17 July 2013 on the basis that he would be harmed or killed by members of the Bangladesh Awami League (“BAL”) if refouled.

5.According to the applicant, he joined the Bangladesh Islami Chhatra Shibir (“Shibir”), a student wing of the Bangladesh Jamaat-e-Islami (“Jamaat”).  The BAL was the opposing party to the Jamaat at the material time.  On 14 August 2005, members of the BAL attacked him and his Shibir group members.  He reported this incident to the police but they refused to render any assistance as they did not wish to upset the BAL.  Thereafter, he decided to relocate to another village about two kilometers away.  However, in around mid-2007, he was attacked again whilst he was hiding.  He did not require hospitalization and later in 2008, his mother informed him it was safe to return to his home village as there was no longer anyone searching for him.  In around late 2010, he was attacked again when he was targeted by BAL members whilst he was in a Jamaat meeting.  After this incident, he decided he did not wish to put his life at stake for the Jamaat party and relocated.  He was once again discovered on around 7 December 2012 when he attended a Jamaat meeting. He was beaten and required hospitalization on this occasion.  Similar to his previous incident, he returned to his home village but was attacked shortly thereafter on 16 December 2012.  In fear of his own safety, his mother advised him to flee Bangladesh.  Details of his claim are set out at [6] of the Notice of Decision dated 10 January 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that: (i) there was no substantial ground for believing that there will be any real or substantial risk to the applicant as the low intensity and frequency of past ill-treatment on him by the BAL indicate a low future risk of harm if refouled [12] and [13]; (ii) he was not a high ranking member of the Jamaat and the lapse of time likely have dissipated the adverse interest the BAL had in him [14]; (iii) state protection would be available to him [17] – [21]; and (iv) internal relocation was a viable alternative [22] and [23].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 26 November 2018, the Board conducted an oral hearing for his appeal, during which he elected to give evidence.  

9.The Board recapped the applicant’s claim [11] – [38].  In essence, the Board held the applicant’s testimony showed a great degree of unreasonableness and was inherently incredible.  His evidence included unbelievable assertions, hearsay and speculation; he was further a mendacious witness [42].  Therefore, the Board rejected the entire factual basis of his claim.  Despite this, the Board proceeded to assess the relevant grounds of non-refoulement protection. It found there was nothing to substantiate BOR 2, BOR 3 risk [70] – [76] and the Persecution risk [50] – [61].  There also no credible evidence that he would be subject to Torture risk [77] and [78].  In relation to internal relocation, the Board found the applicant was able to move from places swiftly notwithstanding the various incidents and found relocating to other regions in Bangladesh was entirely possible in the circumstances [63] – [69]. 

10.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

11.The applicant has filed Form 86 dated 14 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant annexed a copy of the Board’s Decision without raising any specific ground.

DISCUSSION

13.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).

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

15.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.”

16.For the reasons given in paragraph 9, the Board found that the applicant’s claimed risks were unfounded.  There is no valid ground from the applicant to challenge the Board’s Decision.

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

CONCLUSION

18.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 7^th day of May 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