Case Document

100%Judiciary

HCAL 1731/2019

[2024] HKCFI 1949

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1731 of 2019

BETWEEN
	Mohammed Badal alias Rasel Khan	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 oral submissions by the Applicant 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 14 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 did ask for a hearing. He appeared before the Court on 29 May 2014.

The applicant

3.The applicant, aged 57, is a national of Bangladesh. He entered Hong Kong illegally on 1 March 2016 and surrendered to the Immigration Department on 22 March 2016. The applicant made a non-refoulement claim on 26 July 2016. The claim was made on the basis that, if refouled, he would be harmed or even killed by the Awami League (“AL”) leader in his locality named Kamal because the applicant was unable to repay the loan to him and was also a member of the Bangladesh Nationalist Party (“BNP”).

4.According to the applicant, he borrowed money from Kamal in August 1995. He had not repaid any part of the loan, but only paid interest for 4-5 months with the help of his mother. Since July 1996, Kamal had approached him or his family for debt repayment once or twice a week. Kamal also threatened to vandalise his house if he failed to repay.

5.In 1997, the applicant became a BNP supporter. One day in November 2020, Kamal went to the applicant’s home with 20 unknown men. They were aware of the applicant’s affiliation with BNP and threatened to kill him and his family if he failed to repay the loan. To avoid his family from being harmed, the applicant left home and went to stay with his maternal grandmother. About a week later, Kamal and his underlings went to the house of the applicant’s maternal grandmother. They kidnapped the applicant onto a minibus and hit him with hockey sticks for a few times. Thereafter, they dropped him outside his home and left. The applicant did not seek medical treatment since he only sustained bruises on his limbs.

6.To avoid Kamal, the applicant decided to flee Bangladesh for Hong Kong 1-2 weeks later. After he was repatriated back to Bangladesh in 2002, there was an occasion when 10-15 AL members assaulted him and took his money. In 2015 or 2016, Kamal vandalised the applicant’s house with sticks and hammers. Out of fear, the applicant decided to leave Bangladesh for Hong Kong again in 2016.

7.The applicant had never sought help from the police because he believed that they would not help a BNP supporter like him given that AL was the ruling party.

8.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 24 August 2018 (“the Director’s Decision”).

The Director’s Decision

9.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”);

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”); and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

10.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director was of the view that (i) the low frequency and severity of past ill-treatment received by the applicant indicated that his perceived risk of harm was not as imminent and substantial as claimed [10]; (ii) state protection would be available to him [11]-[15]; (iii) internal relocation would be viable [16]; and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [17]-[21], Persecution risk [22]-[27] or Torture risk [28]-[30].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board. On 14 December 2018, the Board conducted an oral hearing.

12.The Board noted that the applicant gave generally consistent evidence, but had doubts towards his credibility in light of the contradicting evidence about his contact with AL [35]. In any event, given the previous action by Kamal and the fact that the applicant was merely an ordinary BNP member, the Board considered that the applicant would not face a genuine and substantial risk of being seriously harmed or killed [36]-[38]. Furthermore, state protection and internal relocation were also available according to the country of origin information [39]-[43].

13.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk, Persecution risk or Torture risk [8]-[21], [44]-[47]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

14.The applicant has filed Form 86 dated 24 June 2019 for leave to apply for judicial review of the Board’s Decision.

15.The applicant attached his grounds in support of his application to Form 86, the contents of which are set out below.

(1)  The Board had unlawfully fettered it discretion by refusing his appeal on the ground that they did not satisfy the requirement.

(2)  The adjudicator acting in a procedurally unfair manner in dealing with his appeal.

(3)  The Board’s Decision is unreasonable or irrational in the public law sense or is a result of procedural errors or unfairness.

(4)  The Board has failed to meet the greater care and duty owed to a self-represented clamant.

DISCUSSION

16.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).

17.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 did not consider that the Board was wrong. However, he did not have evidence before the Board. He further submitted that his father and brother had passed away. Before, his enemy had told his father that if he returned, they would chop off his limbs and gouge his eyes out.

18.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.”

19.For the reasons given above, the Board found that the applicant does not have any real risk of being harmed or killed by Kamal if he returns to Bangladesh.

20.Those grounds in paragraph 15 and his submissions before the Court are only his bare assertions or personal opinions without any evidence in support. They are not valid reasons to challenge the Board’s Decision.

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

CONCLUSION

22.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 26^th day of July 2024

(Allen LEE)
for Registrar, High Court

.

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

Notes for the Applicants: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 26/7/2024 Mohammed Badal alias Rasel Khan Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 26/7/2024 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 13285/18/9/46/B1513 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2413/18 (Formerly RBCZ 12750/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)