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

HCAL 1975/2019

[2024] HKCFI 2526

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1975 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 4 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. He appeared before the Court on 26 August 2024.

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 31, is a national of Bangladesh. He entered Hong Kong illegally on 7 April 2015 and was arrested by the police on the same day. The applicant made a non-refoulement claim on 11 April 2015. The claim was made on the basis that, if refouled, he would be harmed or even killed by Awami League (“AL”) members/supporters because of his involvement in Bangladesh Nationalist Party (“BNP”).

5.  According to the applicant, he became a BNP member since around 2009. At the end of 2010, he was appointed as the General Secretary of the student wing of BNP in his locality. The applicant claimed that his high profile support for BNP had attracted attention from AL.

6.  In 2011, the applicant was assaulted by members from the student wing of AL while he was assisting BNP during the municipal election and the union council election. Thereafter, the applicant relocated to stay with his maternal aunt. On 16 December 2013, the applicant was assaulted by members from the student wing of AL again at the BNP office and he lost consciousness as a result. Meanwhile, the applicant’s family had also been threatened by AL members and his home was vandalised on 27 December 2013.

7.  The General Election was held on 5 January 2014 and the applicant took part in both the pre and post-election protest organised by BNP. Although AL members tried to suppress the protest by attacking the BNP participants, the applicant managed to escape on both occasions without sustaining any injury.

8.  The last occasion on which the applicant was attacked by AL members was in October 2014 when he returned home to visit his mother. Although his mother reported the assault to the police, they refused to register the case without providing any reason.

9.  Upon the advice from his mother, the applicant left for Dhaka. On 13 March 2015, the applicant left Bangladesh for China following the advice of his uncle. Eventually, he sneaked into Hong Kong from Shenzhen on 7 April 2015.

10.  While in Hong Kong, the applicant maintained contact with his family and was informed that AL members were still seeking for his whereabouts from time to time. The applicant was of the view that he could not seek protection from the police because they would only act upon the orders of AL. He also considered internal relocation not viable because AL could easily locate him with their wide network and power.

11.  Details of the applicant’s story can be found in paragraphs 6-9 of the Director’s Decision dated 24 November 2017 (“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”);

(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”); and

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

13.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the low intensity and frequency of past ill-treatment by AL members/supporters indicated the unlikelihood of future risk of harm upon his return to Bangladesh [15.1]; (ii) given the applicant’s grass-root participation in BNP, it was unconvincing that AL would have adverse interest against him [15.2]; (iii) the applicant’s behaviour was inconsistent with that of someone genuinely in fear [15.3]; (iv) state protection would be available [16]-[18]; (v) internal relocation would be viable [15.5], [19] and (vi) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [20]-[25], Persecution risk [26]-[29] or Torture risk [30]-[32].

The Board’s Decision

14.  The applicant appealed the Director’s Decision to the Board. On 8 May 2019, the Board conducted an oral hearing.

15.  During the hearing, the applicant gave completely inconsistent evidence when asked to describe the various assaults he had experienced [5]-[8]. Given the significant discrepancies, the Board attached no credence at all to the applicant’s claim [18]-[21].

16.  Based on such findings, the Board was not satisfied that the applicant’s case met any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [22]-[35]. 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

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

18.  In his affirmation in support of his application, the applicant attached a copy of the Board’s Decision without specifying any reason to challenge the Board’s Decision.

DISCUSSION

19.  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).

20.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant simply asked the Court to consider the Board’s Decision.

21.  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.”

22.  The Board, for the reasons given above, found that the applicant’s evidence on the facts of the claim not acceptable and incredible. There is no valid ground from the applicant to challenge the Board’s Decision.

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.