Ziaul Haq Milon v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1981/2019

[2024] HKCFI 2535

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1981 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 20 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 35, is a national of Bangladesh. He entered Hong Kong illegally on 25 December 2012 and was arrested by the police on 30 December 2012 for illegal remaining and theft. He was sentenced to imprisonment of 17 months for the said offences. The applicant first made a torture claim on 7 January 2013. As he failed to respond to the Director’s inquiry, the Director treated him as not having made the claim. The applicant made a torture claim again on 5 September 2013 and a non-refoulement claim on 4 November 2013 while serving his sentence. He made an application to withdraw the torture claim on 13 December 2013, but applied to reopen the withdrawn torture claim on 15 May 2018. On 16 May 2018, the Director decided to assess the applicant’s non-refoulement claim on all applicable grounds under the unified screening mechanism. The applicant’s non-refoulement claim was made on the basis that, if refouled, he would be harmed or even killed by Awami League (“AL”) members because he did not pay them extortion money.

4.to the applicant, he had been an ordinary member of Jamaat-e-Islami party (“JeL”) since 2010. In February 2012, the applicant opened a garment shop. About two weeks later, AL members came to extort money from him. Upon the applicant’s refusal to pay, the AL members assaulted him. The applicant was sent to hospital for treatment as a result. He reported the assault to the police upon discharge from the hospital, but they refused to file a report against AL and demanded bribe from the applicant.

5.Shortly after the applicant re-opened his shop in early March 2012, AL members came again to extort money from him. After the applicant refused to pay, they made threats against him and his family. Thereafter the applicant stayed at home for four months until he left Bangladesh in August 2012. During this period, he heard from his neighbouring shop owners that AL members had been to his shop 2-3 times looking for him and had also threatened to kill him.

6.Eventually, the applicant left Bangladesh for China on 3 August 2012 and he sneaked into Hong Kong from Shenzhen on 25 December 2012. The applicant was of the view that he could not seek protection from the police because they were under the control of AL. He also considered internal relocation not viable because AL could easily locate him with their manpower and connections.

7.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 22 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 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 [11]-[12]; (ii) given the applicant’s grass-root participation in JeL, the matter was likely to be a money extortion by local AL gangsters, which did not represent the stance of the entire AL [13]; (iii) the applicant’s delay in applying for protection was inconsistent with the behaviour of someone genuinely in fear [14]; (iv) state protection would be available [15]-[20]; (v) internal relocation would be viable [21]-[25] and (vi) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [26]-[31], Persecution risk [32]-[36] or Torture risk [37]-[39].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 5 November 2018 and 30 November 2018, the Board conducted oral hearing.

11.The Board found there were serious credibility problems in the applicant’s evidence. Apart from his background, the Board was unwilling to attach any credence on the applicant’s claim that he had been assaulted or threatened by AL members [133]-[151].

12.Based on such findings, the Board was satisfied that the applicant and his family had never experienced any severe pain and suffering and there was no real risk of harm against the applicant upon his return to Bangladesh. 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 [160]-[223]. In any event, state protection [171]-[173] and internal relocation [209]-[210] would also be available according to the country of origin information.

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

15.In his affirmation in support of his application, the applicant said that the immigration officer and the adjudicator did not make proper investigation into his case and he did not have enough time to prepare his case before the Board.

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 simply asked me to review the Board’s Decision.

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 evidence not credible and rejected it.

20.The grounds under paragraph 15 will not assist his application. It is only his bare assertion without any evidence in support and he had not applied for time before the Board for preparation of his case. From the Board’s Decision, the adjudicator had asked him a lot of questions and he was able to answer them.

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

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

DISPOSTION

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.