Khan Baccho v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1819/2019

[2024] HKCFI 2321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1819 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 3 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. He appeared before the Court on 29 July 2024.

The applicant

3.The applicant, aged 58, is a national of Bangladesh. He arrived in Hong Kong as a visitor on 12 June 2015 and overstayed since 27 June 2015. The applicant surrendered to the Immigration Department on 29 June 2015 and made a non-refoulement claim on 26 November 2015. The claim was made on the basis that, if refouled, he would be harmed or even killed by members from Awami League (“AL”), because he belonged to the Jamaat-e-Islami Party (“JEI”).

4.According to the applicant, he became a JEI member in 2000 and took part in their activities. On 5 May 2013, JEI together with other opposition parties called for a protest rally in Dhaka. The applicant together with around 100 supporters from his locality went to Dhaka to join the rally. In the evening, the cadres of AL and the police started to disperse the crowd by throwing hot water and firing bullets. The applicant managed to escape and returned to his hometown.

5.About 1-1.5 months later in 2013, the applicant was threatened by an AL leader (“the AL leader”) and a police inspector to join AL, failing which he would be killed. They also implicated his involvement in various criminal cases and threatened to torture him. In 2014, the applicant started staying at various friends’ and relatives’ homes after police officers went to his home looking for him. Eventually, as he still felt unsafe, he left Bangladesh and arrived in Hong Kong on 12 June 2015.

6.While in Hong Kong, the applicant claimed that he was falsely accused of murdering a boy on 18 August 2017. The applicant had never sought help from the police because he believed that they were associated with AL. He also considered internal relocation not viable because AL would have the means and resources to find him.

7.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 15 June 2018 (“the Director’s Decision”).

The Director’s Decision

8.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”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the absence or low intensity and frequency of past ill-treatment by AL members indicated that they had no real intention to seriously harm or kill him [11.1]-[11.2]; (ii) there was no evidence showing that the AL members had means to locate the applicant anywhere within Bangladesh [11.3]; (iii) state protection would be available to him [12]-[16]; (iv) internal relocation would be viable [17]-[19] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [20]-[26], Persecution risk [27]-[32] or Torture risk [33]-[35].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 22 February 2019, the Board conducted an oral hearing.

11.The Board found that the action by the AL cadres and the police during the 5 May 2013 rally was targeted at the crowd rather than at the applicant personally [45]. The Board was also of the view that the matter was merely a personal grudge because no one from AL had ever harassed the applicant apart from the AL leader who had threatened him once [46]-[47]. Regarding the claimed false implication, the Board considered it a matter to be decided by the Bangladeshi police [48].

12.Based on such findings, the Board 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 [6]-[15], [49]-[58]. Furthermore, internal relocation would also be a viable option for the applicant [59]-[64].

13.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 2 July 2019 for leave to apply for judicial review of the Board’s Decision.

15.The applicant has attached his grounds to his affirmation in support of his application. He has also attached a statement of grounds to Form 86. I shall summarize his grounds as below.

(1) The Board had unlawfully fettered its discretion by refusing his appeal.

(2) The adjudicator acted in a procedurally unfair manner. He was not given an opportunity or invited to make his submissions.

(3) The Board’s decisions to refuse his appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness. The Board had relied on the source of news, which is not officially recognized or it is simply hearsay. It has also relied on some outdated cases. All these result in its groundless speculation that if is safe for him to return to his country.

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

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 that he understood the Board’s Decision. However, he complained that there is no guarantee that he will be safe if he returns to Bangladesh.

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.The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. On the story of the applicant before the Director and the Board, the Board’s decisions are by no means unreasonable or irrational.

20.As to the grounds under paragraph 15, they are the applicant’s personal opinions without any evidence in support. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

21.It is only common sense that no government can guarantee absolute safety for its citizens. There is no valid ground from the applicant to challenge the Board’s Decision.

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

CONCLUSION

23.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

The applicant appeared in person.