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

HCAL 1737/2019 [2024] HKCFI 1921

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1737 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 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.  However, he was absent on 29 May 2024 at the hearing without prior notice to the court.  I shall deal with his application on paper.

The applicant

3.The applicant, aged 44, is a national of Bangladesh.  He entered Hong Kong illegally from Mainland China on 26 May 2015 and was arrested by the police on 27 May 2015.  The applicant made a non-refoulement claim on 30 May 2015.  The claim was made on the basis that, if refouled, he would be harmed or even killed by people from Awami League (“AL”) because he was a member of Bangladesh Nationalist Party (“BNP”).

4.According to the applicant, he began supporting BNP in 2007.  On 1 October 2008, he became a member of the youth front of BNP upon invitation by BNP leaders.  On 5 January 2015, around 600-700 BNP members gathered on the streets to block the highway as an attempt to disrupt the AL-led government.  Subsequently, around 1000 AL members and police officers arrived at the scene.  Many BNP members were attacked and arrested, but the applicant managed to flee the scene unharmed.  Since then AL became more hostile towards BNP and its affiliates.

5.One day in early March 2015, when the applicant was shopping for food, he was approached by two AL members, who scolded and asked why he still supported BNP.  Thereafter, a few more AL members joined in and together they beat the legs of the applicant with iron rods and wooden sticks.  The AL perpetrators left after the passersby intervened, but they threatened to kill the applicant the next time they saw him.

6.The applicant went home after receiving treatment from a doctor.  His father then sent him to India on a bus.  The applicant returned home a week later after he spent all his money.  His father believed that the attack on the applicant was not a random encounter, but a premediated attack by AL.  The applicant’s father therefore brought the applicant to Dhaka while making arrangement with an agent to send him out of Bangladesh.  Eventually, the applicant left for Mainland China on 22 May 2015, after which he sneaked into Hong Kong on 26 May 2015.   

7.The applicant maintained contact with his father while in Hong Kong.  He was informed that the AL members were still seeking for his whereabouts at his hometown.  The applicant was of the view that he could not seek protection from the police because they would not act against AL.  He also considered internal relocation not viable because AL was in control of the administration, police force and the military in Bangladesh.

8.Details of the applicant’s story can be found in paragraph 10 of the Director’s Decision dated 14 December 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 intensity and frequency of past ill-treatment from AL members indicated the applicant’s perceived risk of harm was not as imminent and substantial as claimed [16] - [17]; (ii) state protection would be available to him upon his return [19] - [24]; (iii) internal relocation would be viable [18], [25] - [28] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [29] - [34], Persecution risk [35] - [40] or Torture risk [41] - [43].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board.  On 26 March 2019, the Board conducted an oral hearing.   

12.During the hearing, the applicant demonstrated a lack of knowledge towards BNP and that he was unaware of the most significant aspects of party politics in Bangladesh at a time when he claimed to be actively involved in BNP [26], [30] - [35].  The applicant also got the name of the BNP leader whom invited him to join the BNP youth wing wrong [36] and that he could not even name the BNP youth wing he joined [37].  In fact, it appeared to the Board that the applicant did not know the existence of such youth wing [43].

13.Regarding the demonstration on 5 January 2015, the Board noted that the applicant failed to demonstrate any real understanding of its purpose or intent [38].  The Board also failed to understand why the applicant would choose to return to Bangladesh to wait for his Chinese visa instead of staying in India if his life was at risk [41].  As to the claimed injuries, the Board was of the view that the photographs could only provide minimum assistance as they failed to show the identity of the person injured as well as how and when the injuries occurred [42].

14.The Board had significant doubts towards the truth of the central aspects of the applicant’s claims [45].  It did not accept that the applicant was an active supporter or member of BNP.  While it accepted that the applicant was a spectator for part of the demonstration on 5 January 2015, the Board did not accept that he attended the demonstration with any political motive, nor did it accept that he was ever harmed or he faced risk of harm due to his affiliation to BNP [46].  The Board also rejected that the applicant’s injuries were sustained in the way he claimed [47].

15.Based on such findings, the Board found that the applicant would not face a real risk of harm or death upon return to Bangladesh [48].  It concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [49] - [68].  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

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

17.The applicant has filed an affirmation in support of his application, in which he raised the grounds summarized below.

(1)  The hearing bundle was given to him shortly before the hearing.  He did not have enough time to prepare for it.  Also, he did not have interpretation service for his preparation.  Therefore, he was confused at the hearing.  However, he was able to answer the questions put to him.  The Board did not inform him of the decision by phone despite request had been made.

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

(3)  It is unfair that there was no hearing for BOR 2 risk.

(4)  The Board had not been to his country to make proper inquiry of his situation.

DISCUSSION

18.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).

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

20.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.”

21.For the reasons given above, the Board rejected his evidence in support of his claim.  I consider that the Board was entitled to form its views as it did under those circumstances.

22.As to the grounds raised in paragraph 17, the applicant did not raise this issue with the Board at the hearing and asked for an adjournment for his preparation.  He said that he was able to answer the questions put to him by the adjudicator.  The Board has no legal obligation to notify him by phone.  Ground (1) fails. Ground (2) is his bare assertion without any evidence in support.  Ground (3) is simply not true as the Board had dealt with BOR in the hearing.  The Board does not have to go to his country to understand the situation as the adjudicator can rely on the country of origin information.  Ground (4) fails too.

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

CONCLUSION

24.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 8^th day of August 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