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

HCAL 1993/2019

[2024] HKCFI 2407

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1993 OF 2019

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 26 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 26 August 2024.

The applicant

3.The applicant, aged 36, is a national of Bangladesh. He entered Hong Kong illegally on 21 January 2015 and was arrested by the police on 25 February 2015. The applicant made a non-refoulement claim on 27 February 2015. The claim was made on the basis that, if refouled, he would be harmed or even killed by Awami League (“AL”) members because of his political affiliation with Bangladesh Nationalist Party (“BNP”).

4.According to the applicant, he joined BNP as a general member in 2010. In July 2010 and early 2011, the applicant was attacked twice by a group of strangers in facemasks. Given that he was warned to stop participating in BNP activities, he suspected that the assaults were done by AL members. The applicant reported the 1^st assault to two police stations, in which one of them refused to accept his case without a reason, while the other asked for bribe but took no follow-up action thereafter.

5.The applicant then moved to Dhaka and stayed with his aunt. In around May 2012, while the applicant was attending a BNP rally with some 200-250 participants, 8-9 people in AL uniform attacked the BNP demonstrators. During chaos, the applicant saw some BNP demonstrators stabbed an AL member. The applicant was subsequently arrested by the police for suspected murder, but was later released on bail.

6.The applicant continued to stay with his aunt in Dhaka after his release. In 2014, his family told him that his shop was burnt down, for which the applicant believed was done by AL. Fearing for his safety, the applicant arranged with an agent to leave Bangladesh. Eventually, he left for China on 14 January 2015 and then sneaked into Hong Kong on 21 January 2015.

7.While in Hong Kong, the applicant learnt from his aunt that he was convicted of murder. The applicant considered both state protection and internal relocation not viable because AL was the ruling party and that he was suspected of killing one of its members.

8.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 30 November 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 found that (i) the low intensity and frequency of past ill-treatment by AL members indicated that they had no real intention to seriously harm or kill the applicant [15]-[17]; (ii) given the applicant’s grass-root participation in BNP and his long absence from Bangladesh, any adverse interest from AL should have dissipated [19]; (iii) state protection would be available [20]-[23]; (iv) internal relocation would be viable [18], [24]-[28] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [29]-[33], Persecution risk [34]-[39] or Torture risk [40]-[42].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board. On 7 May 2019, the Board conducted an oral hearing.

12.The Board found that the applicant was not a witness of truth and had fabricated his claims in relation to his support for BNP and the harm he suffered from AL [107]. The Board was not convinced that the applicant was politically active [109]. As to the claimed assault by AL, the applicant had given inconsistent evidence about the date and the duration of his hospitalisation about the first attack [111]-[112]. His behaviour was also inconsistent with that of someone genuinely in fear [113]-[116]. Meanwhile, the Board put very little weight on the supporting documents provided by the applicant because of the manner in which they were obtained and that in any event, they were inconsistent with the account given by the applicant [118]-[119].

13.Given the gaps, inconsistencies and other problems with the evidence, the Board rejected the applicant’s claim in its entirety. The Board found the applicant and his family had never joined BNP or its student wing. He had not participated in any BNP activities and had not been assaulted by members of AL. The Board was also not convinced that the applicant had been charged with and convicted of murder [120]-[124].

14.The Board was satisfied that the applicant was not of adverse interest to AL or to the police, so that there was no real risk that he would face any of the proscribed forms of harm upon return to Bangladesh [125]-[127]. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, Torture risk or BOR 2 and BOR 3 risk [2]-[20], [128]-[131].

15.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 dated 15 July 2019 for leave to apply for judicial review of the Board’s Decision.

17.In his affidavit in support of his application, the applicant has raised the grounds as below.

(1)  He was not given the opportunity to put forward his submissions and evidence.

(2)  He was not invited to make written submissions and evidence.

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

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. Before me, the applicant asked me to review the Board’s Decision.

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.The Board, for the reasons given above, found that the applicant has fabricated a case for his claim and it rejected his evidence. The applicant has raised no valid reason to challenge the Board’s Decision.

22.There is no reason that the Court should interfere with the Board’s finding of the facts.

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

DISPOSITION

24.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.