SARKAR MOHAMMAD MAHBUB ALAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1899/2019

[2024] HKCFI 2414

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1899 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 26 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. However, he was absent at the hearing on 14 August 2024. I shall deal with his application on paper.

The applicant

3.  The applicant, aged 38, is a national of Bangladesh. He entered Hong Kong illegally on 26 August 2015 and he surrendered to the Immigration Department on the same day. The applicant made a non-refoulement claim on 12 May 2016. The claim was made on the basis that, if refouled, he would be harmed or even killed by some local leaders of Awami League (“AL”) because he was an active member of Bangladesh Nationalist Party (“BNP”) and repeatedly refused to join AL. The applicant also feared of being arrested by the police because a false case of sabotage (“the sabotage case”) was filed against him.

4.  According to the applicant, he joined BNP because he admired their philosophy. In 2014, he became a member of the Chittagong City Metropolitan Unit Committee for BNP. In around 2014/2015, some local AL leaders started demanding the applicant to leave BNP and join AL, for which he repeatedly turned down their request. From then on, the applicant was constantly harassed by AL members. On one occasion, they tore away the BNP posters put up by the applicant. There were also occasions when AL members went to the applicant’s house to threaten his parents/relatives while carrying firearms. The applicant did not seek assistance from the police because he believed that they sided with AL.

5.  In early 2015, an informant from the police notified the applicant’s father that the sabotage case was filed against the applicant due to his active involvement in BNP activities. Out of fear, the applicant fled his hometown and went to stay with his younger sister. In around April 2015, he was informed by his family that police officers had come to his home asking for his whereabouts due to the sabotage case. Subsequently, the applicant returned to his hometown and stayed at his uncle’s place for two months. Later, upon hearing from his younger sister that police officers had also been to her place looking for him, the applicant relocated to Dhaka in June 2015 and stayed with his paternal aunt. Eventually, upon taking his father’s advice, the applicant left Bangladesh for China on 17 August 2015 and then sneaked into Hong Kong from Shenzhen on 26 August 2015.

6.  The applicant maintained contact with his parents and was informed during the conversation in September 2018 that both the police and AL members had been to his home several times seeking for his whereabouts.

7.  The applicant was of the view that he could not seek protection from the police because they only safeguarded the interest of the ruling AL. He also worried that filing a report with the police would lead to disclosure of his identity and whereabouts to AL. The applicant considered internal relocation not viable as well because AL members could locate him through their networks.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 31 October 2018 (“the Director’s Decision”).

The Director’s Decisions

9.  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”).

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) given the applicant’s participation in BNP was limited to his locality, there was no reason that he would be specifically targeted by the whole AL [12]; (ii) the networks of the local AL leaders were not as strong and extensive as claimed [13]; (iii) there was insufficient evidence indicating that the local AL leaders had the intention to seriously harm or kill the applicant [14]; (iv) the sabotage case was merely hearsay and it was also illogical that he could leave Bangladesh simply by bribery if he was a suspected offender [15]; (v) it was the applicant’s mere speculation that the police and the judiciary would act in favour of AL [16]; (vi) state protection would be available [17]; (vii) internal relocation would be viable [18]-[24] and (viii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [25]-[30], Persecution risk [31]-[37] or Torture risk [38]-[40].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. On 7 May 2019, the Board conducted an oral hearing.

12.  In the Notice of Appeal, the applicant claimed for the first time that he was being tortured by AL members [55]. After lodging the Notice of Appeal, he also claimed that he had a false murder case (“the false murder case”) against him [60].

13.  During the hearing, the applicant was only able to name two out of the four members in the Chittagong City Metropolitan Unit Committee [74]-[76]. When asked why he failed to mention the false murder case earlier, the applicant blamed the duty lawyer, who advised him not to mention due to lack of relevant documentary proof [79]. As for the torture, the applicant claimed that it started from 2014 and then became more serious in January/February 2015. On one occasion, he even became unconscious [80]. He told the Board that he mentioned nothing about the torture previously because he did not understand the interpreter clearly and was also advised by the duty lawyer not to include things without documentary proof [81]-[82].

14.  The Board found that the applicant was not a witness of truth and had fabricated his claims [99]. His evidence about when he became involved in politics and when he joined BNP was unreliable and evasive [101]-[102] given that (i) his progress to the level of Chittagong City Metropolitan Unit Committee for BNP was not persuasive [103]; (ii) he was unable to name two out of the four members of the Chittagong City Metropolitan Unit Committee [104] and (iii) his timing for joining BNP was unexplainable [105]. Meanwhile, the applicant also gave inconsistent evidence as to whether he had been tortured and his explanation that he did not mention the false murder case due to lack of documentary proof was unconvincing given that the sabotage case was mentioned despite lack of document proof [106]-[108], [112].

15.  Given the gaps, inconsistencies and other problems with the evidence, the Board rejected the applicant’s claim in its entirety [111]. The Board found the applicant had never joined BNP, nor had he ever became a member of Chittagong City Metropolitan Unit Committee for BNP. It was also not accepted that there were criminal charges filed against him [113]-[114].

16.  The Board concluded that the applicant was safe to return to Bangladesh without facing any of the proscribed types of harm [119]. Based on such findings, the Board held that the applicant’s case failed to meet any of the requirements under Persecution risk, Torture risk or BOR 2 and BOR 3 risk [2]-[20], [120]-[123].

17.  The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

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

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

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

(1)  The Board has unlawfully fettered its discretion by refusing his application. His decision is therefore unreasonable or irrational in the public law sense, or as a result of procedural errors or unfairness.

(2)  The adjudicator had acted in a procedurally unfair manner.

(3)  The Board did not take into account that life and limb are in jeopardy and the applicant has his fundamental human rights not be subjected to torture.

(4)  The Board relied upon the source of news which is not officially recognized, or it is simply hearsay. It has also relied on outdated cases, resulting in its groundless speculations.

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.  The Board has given the reasons for finding that the applicant has fabricated his case and he is not a witness of truth. The applicant has raised no valid reasons to challenge the Board’s finding of the facts.

24.  Those grounds under paragraph 19 are his general assertions or comments without any evidence in support. They are not valid reasons to challenge the Board’s Decision.

25.  There is no reason that the Court should interfere with the Board’s finding of the facts.

26.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

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