Shopun Ahkun v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 2230/2019 [2025] HKCFI 113 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2230 OF 2019 _____________ BETWEEN
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_______________ J U D G M E N T _______________ 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 9 December 2024. I shall deal with his application on paper. The applicant 3.The applicant, aged 41, is a national of Bangladesh. He entered Hong Kong as a visitor on 5 March 2013. He had overstayed since 20 March 2013 and was arrested by the police on 7 June 2013. The applicant made a torture claim on 10 June 2013, but was rejected on 17 January 2014. He lodged a further non-refoulement claim on all applicable grounds other than Torture risk[1] on 8 April 2014. The claim was made on the basis that, if refouled, he would be harmed or even killed by members of Awami League (“AL”) because he refused to join them. He also claimed that there was a false case filed against him by AL, so that he was wanted by both the Bangladeshi authorities and the AL members. 4.According to the applicant, he joined Bangladesh Nationalist Party (“BNP”) as an ordinary member in 2006. In December 2012, after the applicant refused joining Chhatra League, i.e. the student wing of AL, he started to receive threats. In mid-2013, two strangers, which the applicant believed were affiliated to AL, told him that a court case about firearms was filed against him (“the court case”). Subsequently, the applicant learnt from his teacher that the court case was about him hiring two terrorists to carry firearms to Dhaka and an arrest warrant was issued against him. In February 2013, the same two strangers approached the applicant twice and requested him to make a confession. Meanwhile, the applicant also feared harm from the two terrorists, as they could not have sentence reduction due to his failure to confess. Out of fear, the applicant left Bangladesh for Hong Kong in March 2013. 5.While in Hong Kong, the applicant maintained contact with his parents, who informed him that the police and the AL members were looking for him. Since early 2018, the applicant had received three threatening messages to his Hong Kong mobile phone, including one threatening that he would be killed upon return to Bangladesh. 6.The applicant was of the view that he could not seek protection from the police because AL was in power. He also considered internal relocation not viable because AL was still the ruling party and that the police would also be after him due to the court case. 7.Details of the applicant’s story can be found in paragraph 9 of the Director’s Decision dated 24 August 2018 (“the Director’s Decision”). The Director’s Decision 8.The Director considered the applicant’s claim in relation to the following risks:
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 the low intensity and frequency of past ill-treatment received by the applicant indicated a small future risk of harm upon his return to Bangladesh. The Director also had doubts towards the court case and found the applicant’s fear of being harmed by the two terrorist a mere speculation [15]-[21]. Furthermore, state protection [22]-[27] and internal relocation would also be available [28]-[32]. The Board’s Decision 10.The applicant appealed the Director’s Decision to the Board. On 19 December 2018, the Board conducted an oral hearing. 11.The Board noted that the applicant gave generally consistent evidence and was convinced on the balance of probabilities that his account of events was credible [27]. However, the Board considered that the low frequency and intensity of threat by AL members indicated that they had no real intention to seriously harm or kill the applicant. It was also unreasonable that AL would mobilise members simply to kill an ordinary member like the applicant. Furthermore, the court case was highly doubtful given the applicant’s uneventful passing through at the Bangladeshi border [28]-[30]. 12.In any event, both state protection and internal relocation would be available according to the country of origin information [32]-[36]. Based on such findings, the Board rejected the applicant’s claim on Persecution risk, BOR 2 and BOR 3 risk [9]-[16], [37]-[39]. 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 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 stated that the adjudicator had no practical idea about his claim and he did not have a lawyer to assist him for the hearing, which is his basic right. 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:
19.The reasons given under paragraph 15 do not assist the applicant. The adjudicator may rely on the COI to understand his situation in his country. The Court of Appeal has held that he is not entitled to free legal assistance all the time throughout the proceedings[2]. 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. DISPOSITION 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 was unrepresented and did not appear. [1] Risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 [2] The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178, Hon Lam & Chu JA, 26 March 2018, held:
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