PINTO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1458/2019

[2024] HKCFI 650

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1458 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 absent 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 16 May 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.  As the applicant asked for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a date was fixed for him to appear on 6 September 2023.  However, he was absent without prior notice to the Court. His application is therefore dealt with on paper.

The applicant

3.  The applicant is a national of Bangladesh.  He was arrested by the police for being a suspected illegal immigrant on 29 September 2015.  Upon enquiry by the Immigration Department, he admitted he had entered Hong Kong illegally on the same date.  Subsequently, he raised a non-refoulement claim on 3 October 2015 on the basis that he would be harmed or killed by enemies of his late father and members of the Awami League (the “AL”).

4.  In brevity, the applicant claimed that when he was seven years old, his mother informed him that there was a false criminal charge brought by the Village Committees against his father.  Shortly after his father was incarcerated, he was executed by lethal injection.  Apparently after high school, he launched an investigation to review his late father’s case in order to achieve justice for his father.  However, most of the members of the Village Committees at the material time had already passed away due to old age and he suspected those who wish to harm him were the descendants/relatives of those members of the Village Committees.

5.  As for the threat from the AL, the applicant claimed he was attacked by members of AL one afternoon in around August 2009 as they recognized him to be a supporter of the Bangladesh Nationalist Party (“BNP”), which was an opposing party to the AL.  Despite he was in fact not a member of the BNP but merely a supporter, he was still assaulted.  During the attack, he was able to escape and fled to his in-law’s home, about one-hour walking distance from his home village.  One of the members of the AL during the attack (Mr Gitu), called him and threatened to kill him.  Due to these threats on his life, the applicant’s wife suggested that he flee Bangladesh.  He therefore sought refuge at his elder sister’s home in Dhaka. However, one morning in around 2011, he was arrested by the police for having illegal drugs in a bag, which did not belong to him.  He was incarcerated at the police station for over a month and eventually released on court bail.  One night in around 2013, another incident occurred when he was arrested again by the police on the same charges (possession of illegal drugs).  The police later informed him that they were under the instructions of Mr Gitu to detain him for at least five days.  After about 20 days, the applicant’s wife was able to pay a bribe and secure his release. The last incident occurred in around 2014, when a member of the AL visited his workplace in Dhaka and threatened to kill him.  In fear of his life, he attempted to flee to Nepal on 18 October 2014.  However, the AL was able to locate him within a month in Nepal and he returned to Bangladesh.  After staying relatively safe in other regions of Bangladesh away from his home village for several months, he departed for Mainland China on 26 August 2015, eventually making his way into Hong Kong.  Details of the applicant’s claim are set out at paragraph 6 of the Notice of Decision dated 7 September 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that: (i) there were no substantial grounds for believing that there will be any risk of harm to the applicant from enemies of his late father or members of the AL, as there was only one physical attack inflicted, meant the said risk is not likely to materialize [11] and [12]; (ii); the fear to be killed by Mr Gitu and members of the AL does not appear as real and imminent as alleged, as Mr Gitu’s conduct did not demonstrate there was a dogged determination to cause the applicant serious harm, let alone kill him; (iii) state protection was available which further lowered or negated the perceived risk [18] – [21]; and (iv) internal relocation was a viable option [25] and [26].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 8 April 2019 the Board conducted an oral hearing for his appeal, during which he answered questions from the Board [34] – [46].

9.  Having considered the evidence, the Board was unable to accept that he was targeted by Mr Gitu and/or members of the AL, and that he would be harmed or killed, if returned to Bangladesh, for several reasons [48].  Firstly, it found his evidence to be fanciful and unsupported, such as the notion that he was attacked in 2009 and the incidents later on were mere speculations that the AL was after him [49].  Secondly, it also held that Mr Gitu and/or members of the AL are unlikely to still harbour adverse interest in the applicant due to the lapse of time of over five years; during which he was able to pass freely in and out of the country, indicating the Bangladeshi authorities were also unlikely to continue to hold adverse interest against him [51] – [53].  Lastly, he deposed at the hearing that Mr Gitu and/or AL have stopped searching for him since his departure from Bangladesh in 2015. However, this directly contradicted his evidence before the Director that the AL was still looking for him as late as June 2018 [54] and [55].  In considering the applicable grounds of non-refoulement protection, the Board found there was no state acquiescence as the harm would not be inflicted by the state, notwithstanding the applicant’s allegation that the said harm was supported by the authorities and government [79].

10.  In light of the above reasons, the Board dismissed his appeal and confirmed the Director’s Decision.

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

11.  The applicant has filed Form 86 dated 29 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In support of his application, the applicant has raised the grounds below.

(1)   The hearing bundle was given to him shortly before the hearing and the documents in English were without interpretation. He was unable to obtain an affordable interpreter himself.

(2)   He was therefore confused at the Board’s hearing. However, he had answered all the questions put to him.

(3)   The Board had relied on the source of news which is not officially recognized or it is simply hearsay, resulting in the Board making speculation that he will be safe in his country.

DISCUSSION

13.  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).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  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.”

16.  The Board had, for the reasons given in paragraph 9, found that he failed to establish, by evidence, that he will be subjected to any real risk as he claimed if he returns to Bangladesh.

17.  The grounds in paragraph 12 do not assist him. From the Board’s Decision, there was no complaint to the Board that he did not have sufficient time to prepare the hearing.  Yet, he was able to answer all the questions put to him by the Board.  Ground (3) is only his personal opinion without any evidence in support.  Therefore, he has raised no valid ground to challenge the Board’s Decision.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.  I refuse to grant leave to 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