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

HCAL 1690/2019

[2024] HKCFI 1869

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1690 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 17 June 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, a hearing date of 13 May 2024 was fixed for him to appear before the Court.  However, he was absent without prior notice to the Court.  I shall deal with his application on paper.

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 38, is a national of Bangladesh.  He entered Hong Kong as a visitor on 25 May 2013 and overstayed since 29 May 2013.  He was arrested by the police on 7 June 2013.  The applicant made a torture claim on 10 June 2013, which was rejected on 29 November 2013.  On 5 December 2013, the applicant made a further non-refoulement claim on all applicable grounds other than Torture risk^[1]. The claim was made on the basis that, if refouled, he would be harmed or even killed by the victim’s family and his associates because they believed that he was responsible for the death of the victim.  The applicant also feared the risk of imprisonment for being involved in the murder of the victim.

5.  According to the applicant, his father was one of the four village heads in his locality.  In 2008, the village heads decided on the reclamation of the village canal.  Upon the completion of the reclamation, the applicant’s father announced that no one should take out any part of the reclaimed land on lease from the government, as this would adversely affect the development of the village.  Despite such warning, the victim, who was affiliated with Awami League (“AL”), took out a lease in relation to the reclaimed land and set up about 50 shops.  The villagers were very upset about the action of the victim.  The village heads tried to negotiate with the victim for about a year but was unsuccessful.  The applicant claimed that the victim was very influential because he had the backing from the officer-in-charge of the local police station and a member of the Parliament. 

6.  In October 2009, the village heads decided to demolish the shops built by the victim, who vowed to guard the shop with his life if necessary.  On 26 October 2009, a confrontation broke out between the villagers and the victim’s group.  During the process, the victim attacked one of the village heads (“Abu”) with the spear of a bamboo pole, which injured Abu’s daughter when she tried to protect her father.  Abu then pulled out the spear, stabbed the victim through his throat and chopped him with a long knife.  The victim fell to the ground and died as a result.  A massive fight then broke out, during which the applicant sustained a cut to his left hand and his whole body felt painful.  He went to a doctor to treat his wound, but he did not report the incident to the police.  

7.  The news of the victim’s death spread across the village and the villagers left en masse because they were afraid to be arrested by the police.  The applicant moved away from his hometown on the same day and his family also relocated.  Shortly afterwards, the homes of all the villagers supporting their side were looted with the assistance of the police.  Meanwhile, a case was filed with the police regarding the victim’s murder, in which Abu, the applicant and his father as well as others involved in the fight were named as defenders.  The applicant and his father surrendered themselves and were detained for 21 days.  They were subsequently released on bail.

8.  In March or April 2013, the applicant was advised by his lawyer the likelihood of a conviction if the case against him could be substantiated and that he might be imprisoned for 8-10 years.  Furthermore, the applicant was also tipped off that the two sons of the victim had returned from abroad and intended to take revenge on the applicant for his involvement in the victim’s death.  To avoid further trouble from the court case and the victim’s sons, the applicant left Bangladesh for Hong Kong on 25 May 2013. 

9.  The applicant maintained contact with his parents while in Hong Kong.  He learnt that Abu, his father, together with five others including himself were sentenced to life imprisonment for murdering the victim.  The applicant’s family had already lodged an appeal for him and his father.  In the meantime, the victim’s family were seeking for the applicant’s whereabouts back in Bangladesh.

10.  The applicant considered internal relocation not viable because he believed that he could be found by the victim’s family and his associates anywhere within the country.  He was also of the view that he could not seek protection from the police because they were under the control of AL.

11.  Details of the applicant’s story can be found in paragraph 10 of the Director’s Decision dated 29 November 2018 (“the Director’s Decision”).

The Director’s Decision

12.  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”).

13.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director was of the view that (i) the absence or low intensity and frequency of past ill-treatment received by the applicant indicated a small future risk of harm upon his return to Bangladesh [17]-[18]; (ii) there was no indication that he would not receive a fair trial and protection under the due process of law upon return according to the country of origin information (“COI”) [20]-[21]; (iii) state protection would be available to him [22]-[23]; (iv) internal relocation would be viable [19], [24]-[29] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [30]-[35] or Persecution risk [36]-[41].

The Board’s Decision

14.  The applicant appealed the Director’s Decision to the Board.  On 15 March 2019, the Board conducted an oral hearing.   

15.  The Board found that the applicant was involved in a murder case and he left the country while on bail.  There was no evidence suggesting that the trial process was unfair.  The Board also noted that the applicant remain unharmed in Bangladesh for four years after the murder of the victim until he left for Hong Kong in 2013 [80].

16.  Having considered the applicant’s evidence, the Board was of the view that the applicant’s case failed to meet any of the requirements under Persecution risk or BOR 2 and BOR 3 risk [16]-[24], [79]-[80].

17.  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

18.  The applicant has filed Form 86 dated 19 June 2019 for leave to apply for judicial review of the Board’s Decision.

19.  In the affirmation in support of his application, the applicant annexed the hearing bundle with it without raising any specific ground.

DISCUSSION

20.  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).

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

22.  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.”

23.  For the reasons given by the Board above, the Board found that the applicant had failed to establish that he had well-founded fear that there will be real risk he will be subjected to any of the applicable risks if he returns to Bangladesh.  Having considered the reasons given by the Board in support of its conclusion, I find that the Board was entitled to form its views, based upon the evidence before it.  The applicant has failed to raise any valid reason to challenge the Board’s Decision.

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

CONCLUSION

25.  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