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

HCAL 2150/2019

[2024] HKCFI 2873

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2150 OF 2019

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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 22 July 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 14 October 2024.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant, aged 39, is a national of Bangladesh.  He entered Hong Kong as a visitor on 11 October 2005 and he overstayed since 26 October 2005. The applicant was arrested by the police on 29 December 2005. He made a torture claim on 11 January 2006, which was rejected on 21 November 2012. His subsequent appeal to the Board and the judicial review application to Court were also dismissed on 15 January 2013 and 12 March 2013 respectively. The applicant lodged a further non-refoulement claim on all applicable grounds other than Torture risk^[1] on 5 February 2013. The claim was made on the basis that, if refouled, he would be harmed or even killed by members of the Bangladesh Nationalist Party (“BNP”) because of his affiliation to the student wing of the Awami League (“AL”).

5.According to the applicant, he joined the student wing of AL as a member in 1998 and became its secretary in 2000. Since then, the applicant had been subjected to mistreatment on various occasions by BNP members, including (i) he was hit by a cricket stump in June 2003, which resulted in his collarbone fracture; (ii) he was forced to leave the committee of a voluntary organisation by BNP members in late 2003; and (iii) his father’s business, which was taken over by him, was forced to shut down due to the continuous harassment by BNP members in May/June 2005. Upon advice from his mother, the applicant left Bangladesh and arrived in Hong Kong on 11 October 2015.

6.While in Hong Kong, the applicant was informed that the BNP members had gone to his home looking for him, but they eventually lost interest in tracking him down given the elapse of time. The applicant was of the view that he could not seek protection from the police because they were corrupted and he had no faith in them. He also considered internal relocation not viable because he lacked the financial means for relocation.

7.Details of the applicant’s story can be found in paragraph 9 of the Director’s Decision dated 31 December 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”); and

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”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim on Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the low intensity and frequency of past ill-treatment by BNP members indicated that they had no real intention to seriously harm or kill the applicant [14]-[17]; (ii) given that the applicant had ceased his involvement with the student wing of AL since 2004, the enmity of BNP members against him should have dissipated [18]; (iii) state protection would be available [20]-[23] and (iv) internal relocation would be viable [19], [24]-[25].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 8 May 2019, the Board conducted an oral hearing.   

11.The Board found the applicant’s evidence was coherent and consistent [33] and that his claims about the dispute between AL and BNP were consistent with the country of origin information [35]. The Board considered that the applicant was a reliable witness and accepted that he suffered various harassment and mistreatment by BNP members due to his involvement in the student wing of AL [38]-[39].

12.Despite so, the applicant should not face a real risk of harm upon return to Bangladesh given the elapse of time since he left the country and the fact that BNP was no longer in power since 2008. In any event, he only encountered physical violence on one occasion, which indicated that he was not a person of particular adverse interest to BNP. Furthermore, internal relocation would also be available. 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 or Persecution risk [41]-[66].

13.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

14.The applicant has filed Form 86 dated 29 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 has not raised any ground to challenge the Board’s Decision.

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 complained that the Board was wrong for not accepting his evidence.

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. The Board had the discretion to assess his evidence and only accepted the evidence, which the Board considered credible. In fact, the Board did not reject his evidence wholesale. The applicant has no valid ground to complain. There is no valid ground from the applicant to challenge the Board’s Decision.

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

21.The applicant 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.

The applicant appeared in person.