Masud Md v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2237/2019

[2025] HKCFI 66

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2237 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 24 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. However, he was absent at the hearing on 27 November 2024. I shall deal with his application on the papers.

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 42, is a national of Bangladesh. He entered Hong Kong illegally on 4 August 2012 and was arrested by the police on 5 November 2012. The applicant made a torture claim on 9 November 2012, which was rejected on 8 July 2013. His subsequent appeal was also dismissed on 26 March 2014. The applicant lodged a further non-refoulement claim on all applicable grounds other than Torture risk[1] on 17 July 2013. The claim was made on the basis that, if refouled, he would be harmed or even killed by members of Awami League (“AL”) due to a political dispute.

5.According to the applicant, he became a supporter of Bangladesh Nationalist Party (“BNP”) in 1997. Due to his active involvement in BNP activities, he attracted adverse attention from AL members. Between mid and late 2005, the applicant was punched twice by AL members on the street. The AL members also went to his home and threatened him through his family on two occasions. Subsequently, the applicant was detained by the police for 15 days due to a false drug case filed against him by AL members, during which he was assaulted. He was only released after his mother bribed the police.

6.One day in 2011, the applicant was attacked by 4-5 AL members with hockey sticks on the street. On 25 February 2012, he left for India, but returned after a day because his friend told him that AL members could still find him there. Due to the continuous threat from AL members, the applicant claimed that he suffered from mental stress and his family therefore made arrangement for him in April 2012 to leave Bangladesh. Eventually, he left for China in late June 2012 and then sneaked into Hong Kong from Shenzhen on 4 August 2012.

7.The applicant maintained contact with his family while in Hong Kong and was informed that AL members were still after him. The applicant was of the view that he could not seek protection from the police because they refused to take any action when his mother reported the matter to them. He also considered internal relocation not viable because AL members could easily locate him through their widespread network.

8.Details of the applicant’s story can be found in paragraph 9 of the Director’s Decision dated 24 July 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”); 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”).

10.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 claimed ill-treatment by AL members failed to attain the minimum level of severity [15]-[16]; (ii) the evidence indicated that AL members had no real intention to seriously harm or kill him [17]; (iii) the matter concerned were merely private disputes and that the applicant would unlikely be of adverse interest to the entire AL given his grass-root involvement in BNP [18]; (iv) there was no evidence showing that the AL members had the means to pursue him nationwide [19]; (v) state protection would be available [20]-[23] and (vi) internal relocation would be viable [24]-[25].

The Board’s Decision

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

12.The Board considered that the applicant was not a witness of truth and that his claims were fabricated [59]. The evidence he gave about his association with BNP was conflicting and he only had scant knowledge about the party [60]-[61]. His evidence regarding the past ill-treatment he experienced from AL members were also inconsistent and contradictory [62]-[64]. Due to such lack of credibility in the applicant’s evidence, the Board rejected his claimed involvement in BNP and his claimed threat from AL [65]-[66].

13.Based on such findings, the Board found the applicant would not face any real risk of harm upon his return to Bangladesh [68] and rejected his claim on Persecution risk, BOR 2 and BOR 3 risk [15]-[26], [69]-[71]. 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 6 August 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 raised the grounds below.

(1)  He was not legally represented as the duty lawyer had advised him that there was no merit in his appeal. Nor did he have any interpreter to assist him.

(2)  The Board’s Decision is unfair. The adjudicator did not make full and proper inquiries into the relevant country of origin information (“COI”) and failed to give sufficient reasons for his decisions.

(3)  The Director could not say the risk was low relying on the frequency and the mode of assault. His risk still exists.

(4)  There was no interpretation for him of the Board’s Decision and he did not understand it.

(5)  He takes the view that the adjudicator’s findings of the fact was without evidence of the COI.

(6)  It is unreasonable to say that he can relocate in his country as he should not be asked to keep hiding for the rest of his life.

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.

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 applicant’s grounds under paragraph 15 do not advance his application. Grounds (2), (3) and (5) are his bare assertions or personal opinions without any evidence in support.

20.Grounds (1) and (4) can be dealt with together. The Court of Appeal has held that such grounds are not valid to challenge the Board’s Decision. The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178 held:

“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”

21.The Court of Appeal in The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 held:

“I8. … …Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.”

22.As to internal relocation, the Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, Hon. Cheung CJHC, Stock VP and Fok JA (as they then were), 21 November 2012, held:

“32. Fourthly, the question of internal relocation (otherwise known as “internal flight”). This is a concept common to refugee law and torture claims. The rationale is simple: if the risk of persecution or torture is a localised one, and it is not unreasonable or unsafe for the refugee or claimant to relocate to another part of the country in question (the “internal relocation alternative”), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT.”

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

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

DISPOSITION

25.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 was unrepresented and did not appear.