Rahman Md Salim v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1658/2019

[2024] HKCFI 1384

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1658 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 4 June 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 date was fixed for him to appear before the Court on 15 April 2024. However, he was absent without prior notice to the Court. I shall deal with his application on paper.

The applicant

3.The applicant, aged 38, is a national of Bangladesh. He entered Hong Kong illegally from Mainland China on 29 January 2016 and was arrested by the police on the same day. The applicant made a non-refoulement claim on 31 January 2016. The claim was made on the basis that, if refouled, he would be harmed or even killed by the members from the Awani League (“AL”) because of his political affiliation with the Bangladesh Nationalist Party (“BNP”).

4.According to the applicant, he joined the BNP and became an active member in 2010 or 2011. Due to his active role, the applicant became a target of AL. When AL came into power on 5 January 2014, they started targeting and torturing BNP members. On 16 January 2014, 15-20 AL members equipped with axes, knives and guns came to the applicant’s house. They attacked him and his younger brother, during which the applicant was stabbed in his lower back and beaten with wooden sticks. The applicant lost consciousness as a result and was hospitalised for 15 days.

5.The applicant could not return to his family house upon discharge from the hospital because it had been vandalised. His family relocated to live with his aunt while he was hiding in different places. The applicant did encounter AL members while he was on the run, but he could not remember what happened. A few months later, the applicant learnt from his friends that the police were after him for vandalism and murder. So he went to India intending to seek protection in August 2014. However, he returned to Bangladesh shortly thereafter because he did not know how to do it. Upon advice from his friend that he could get assistance from the Indian government, the applicant went back to India in September 2014, only to learn that the information from his friend was false. He therefore returned to Bangladesh.

6.The applicant continued hiding in different places in Bangladesh upon return. By the end of 2015, he moved to Dhaka. On 6 January 2016, he left Bangladesh for China. In late January 2016, he was arranged by his agent to enter Hong Kong illegally from Shenzhen.

7.The applicant claimed that his past experience led him to suffer from post-traumatic syndromes. He started losing his memory and was unable to remember things anymore.

8.The applicant had not contacted his fellow BNP members since arriving in Hong Kong. However, his family told him that the situation in Bangladesh had become worse.

9.The applicant did not report the matter to the police because they only followed orders given by AL. He also considered internal relocation not viable.

10.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 11 May 2018 (“the Director’s Decision”).

The Director’s Decision

11.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”).

12.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director was of the view that the low intensity and frequency of past ill-treatment from AL members indicated a small future risk of harm upon his return to Bangladesh. In fact, given that the applicant’s past involvement in BNP was only at the grass-root level, he would not attract adverse interest from the whole AL party in pursuing him, so that his claimed risk of harm was too far-fetched. Furthermore, the applicant’s decision to return to Bangladesh twice after fleeing to India was also inconsistent with that of a person who was genuinely in fear [14], [16] - [17].

13.In any event, (i) state protection would be available to him upon his return [18] - [22]; (ii) internal relocation would be viable [15], [23] - [27] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [28] - [32], Persecution risk [33] - [38] or Torture risk [39] - [41].

The Board’s Decision

14.The applicant appealed the Director’s Decision to the Board. On 16 April 2019, the Board conducted an oral hearing.

15.The Board found the applicant’s evidence to be wholly unreliable. There were material inconsistencies in his evidence and his claims were inconsistent with the country of origin information. Although the applicant claimed memory loss due to post-traumatic syndrome, there was no evidence that he had ever received any medical treatment for this [44].

16.Based on such findings, the Board considered that the applicant was not a witness of truth and his claims were fabricated [45]. They concluded that the applicant’s case failed to meet any of the requirements under Persecution risk [12] - [14], [49] - [50], BOR 2 and BOR 3 risk [15] - [21], [51] or Torture risk [22] - [25], [52]. The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

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

18.In his affirmation in support of his application, the applicant has raised the grounds below.

(1)  The hearing bundle was delivered to him shortly before the hearing. The documents are in English, with which he only has limited skill. He was unable to find affordable interpreter for service.

(2)  He was confused at the hearing. But he answered all the questions put to him. His credibility was raised in question. He considered the Board was unfair.

(3)  The Board failed to notify him by phone of the outcome despite his request.

(4)  The Board had relied on the source of news, which is not officially recognized or it is simply hearsay. It had also relied on outdated cases. All these resulted in the Boarding making speculation that it is safe for him to return to his country.

(5)  BOR 2 risk was assessed without screening, which is unfair.

(6)  The Board had reached its wrong decision as it had not gone to his country to understand the situation there.

DISCUSSION

19.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

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

21.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.”

22.For the reasons in paragraphs 15 and 16, supra, the Board did not accept the applicant’s evidence in support of his claim.

23.As to the grounds in paragraph 18, supra, Grounds (1) and (2) fail as there is no record from the Board’s Decision that he applied for an adjournment because he did not enough time to prepare his case. Further, his written submissions show that he is proficient in English. He admitted that he had answered all the questions put to him by the Board. Ground (3) is a non-point as the Board is under no statutory obligation to notify him by phone. Ground (4) is his opinion without any evidence to support. Ground (5) is not true because BOR 2 risk was assessed together with other applicable risks. Ground (6) fails because it is not necessary for the adjudicator to go to his country. He may rely on the COI instead, which he did.

24.There is no valid ground to challenge the Board’s Decision.

25.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

26.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 6^th day of June 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