HAMID KAZI ABDUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1238/2019

[2024] HKCFI 332

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1238 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 25 April 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. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, he appeared before the Court on 26 April 2023.

The applicant

3.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 22 March 2015 and was arrested by the police on the same date.  On 25 March 2015, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the Awami League (“AL”) because of his membership with the Bangladesh Nationalist Party (“BNP”). 

4.  According to the applicant, he had been a supporter of the BNP since 1993.  In 2009, he became more active in participating the party’s meetings. In 2011, he was made a member of the union BNP and actively attended the gatherings and rallies by the local BNP in both union and district levels. 

5.  The AL took power in 2009.  To stay in power, the BNP organized many protests in which the applicant also participated.  As a result, the applicant was targeted by members of the AL and its sister organizations.  On 5 January 2014, the AL held unfair elections, against which, the BNP held protests so widespread that the AL had to deploy police to stop the BNP movements.  There were clashes among these parties.  Due to the applicant’s participation, the police had noticed him.  Meanwhile, the police also looked for BNP members, arrested them and made them disappear.

6.  In February 2014, the AL members broke into the applicant’s house, assaulting him and threatening to kill him if he refused to quit the BNP and join the AL.  Later, the applicant escaped to other cities.  A few months later, the applicant returned home to visit his family.  He was again attacked by the AL members.  Out of fear, the applicant escaped to other cities before eventually fleeing to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 26 July 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

7.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  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”);

c.  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

d.  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”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that (i) the low frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[17]; (ii) state protection would be available to him [18]-[23]; and (iii) internal relocation was also a viable option [24]-[25].  

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board.  On 7 March 2019, the Board conducted an oral hearing for his appeal, during which he was assisted by a Bengali interpreter [6].

10.  The Board recapped the applicant’s claim and his personal background [27]-[48].  Having considered the evidence, the Board made the following findings.  At the outset, it accepted that opposition supporters might be at risk of harassment by the authorities or the AL [53]-[57].  However, it noted that the applicant was evasive in responding to the inquiries [58].  He was vague about the involvements of his family members in the BNP [59]; he failed to produce any credible evidence that he was not just a member of ordinary rank [60]-[61]; he admitted that the rallies he participated in were not as large scaled as claimed [62]; his evidence was inconsistent as to when he went into hiding from the police [63]; his evidence was changing about who informed him that the authorities were looking for him [64]; there was no evidence that the police continued to look for him [65]; the applicant’s conducts were not consistent with someone who feared a risk of harm [66]-[67]; and that there was no evidence that the police ill-treated him [69]-[70].

11.  In these premises, the Board concluded that the applicant’s claim was not substantiated.  As a result, his appeal was dismissed.

Application for leave to apply for judicial review of the Board’s Decision

12.  The applicant has filed Form 86 dated 8 May 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, the applicant said he considered that the Board’s Decision was unfair.  The following are his main reasons.

(1)   The hearing bundle was given to him shortly before the hearing.  He is not good at English, but was unable to get an interpreter at his own cost.  He was confused, but he had answered the Board’s questions with honesty. He considered that the hearing before the Board was unfair.

(2)   The Board did not accede to his request to notify him of the Board’s decision by phone.

(3)   The Board had relied upon the source of news which is not officially recognized or it is simply hearsay.  Some cases upon which the Board relied are outdated.  Therefore, the Board made groundless speculations that it is safe for him to return to his country.

(4)   It is unfair for the Board to make its decisions on BOR 2 risk without a screening process by the Immigration Department.

(5)   It is unfair that the Board made its decisions without going to his country his situation there.

DISCUSSION

14.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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).

15.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant confirmed that he understands the Board’s Decision and he considers that the hearing was fair.

16.  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.”

17.  The Board, for the reasons stated in paragraph 10, supra found that the applicant’s evidence was not reliable and he had failed to show that he will be subjected to real risk of harm from his enemies if he returns to Bangladesh.

18.  As to the grounds raised by the applicant in paragraph 13, they do not support his application. He had not asked the Board to give him time for better preparation of his case. Yet he was able to answer all the questions put to him by the Board. The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held that the high standard of fairness required by law would not entail an interpretation service being made available to him all the time as he may desire The fact that the Board did not notify him by phone is not a valid ground for his application. Since his case had been screened by the Immigration Department for his other risks, BOR 2 risk claim does not require another screening as it depends on the same facts of his other risks.  It is not necessary for the adjudicator to go to his country to understand his situation as the Board can simply rely on the country of origin information.  It is only his personal opinion that the Board had relied upon outdated information or cases for the assessment of his case.

19.  The applicant has not raised any valid reasons to challenge the Board’s Decision and he therefore fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

20.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1