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

HCAL 1394/2019

[2024] HKCFI 451

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1394 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 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.  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 31 July 2023.

The applicant

3.  The applicant is a national of Bangladesh. He was arrested by police for being suspected an illegal immigrant on 3 June 2014 and was referred to the Immigration Department. He admitted that he came to Hong Kong illegally via Mainland China on the same day. He lodged his non-refoulement by written signification on 6 June 2014 on the basis that, if refouled, he would be harmed or killed by members (including individuals named “Karim, Jewel and Farid”) of the Bangladesh Awami League (“AL”) as he was a supporter of an opposing party, ie the Bangladesh Nationalist Party (“BNP”).

4.  In brevity, the applicant claimed he joined the BNP in 2008 and was an ordinary member. He had a large circle of friends in his home village and hence, Karim, Jewel and Farid coerced the applicant to join the AL in order to gain more members. In early 2009 and early 2014, the applicant was verbally threatened by members of the AL and on the latter occasion, there were death threats made against him. He did not report this matter to police as he believed they would be unable to help him. In fear of his life, he decided to leave Bangladesh on 24 May 2014 to China and subsequently entered Hong Kong. Details of his claim are set out at [8] of the Notice of Decision dated 6 July 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

5.  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”).

6.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that: (i) on the applicant’s own facts, he had not been physically harmed and was safe in his home village for a substantial period of time, therefore indicating there was nothing to suggest the risk of harm was real or imminent [13]; (ii) the low intensity and frequency of past ill-treatment from members of the AL is further indicative of a low risk of harm upon his return to Bangladesh [13]; (iii) state protection was readily available to him in Bangladesh according to objective and credible country of origin information (“COI”) [14]; and; (iv) referring to further COI, internal relocation alternatives were available and reasonable options for him in Bangladesh [15].

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board and an oral hearing was held on 18 March 2019, during which the applicant elected to give evidence.

8.  The Board essentially found the applicant had fabricated or embellished his claim for the following reasons: (i) there were major inconsistencies in the evidence relating to the centerpiece of his claim, ie the alleged verbal assault by members of the AL, such as the location of the incident in 2014, which was in the market place as stated in written statements before the Director but at the hearing, he stated to the Board that he was approached while in a tea shop [41]; (ii) another example was before the Director, he stated there was a confrontation with him and members of the AL, but at the hearing, it was changed to fleeing the scene without coming into contact with them; to which he was unable to provide a satisfactory explanation for such inconsistency [42]; and (iii) these key events were catalyst for him to flee Bangladesh but he had given completely different version of events in his written and oral evidence [43].

9.  Whilst the Board was willing to accept the possibility the applicant may have been a supporter of the BNP, and hence also leading to the possibility he was threatened by AL members in his village after the 2009 elections, his evidence remained inconsistent with his earlier statements before the Director [44]. The Board nevertheless considered his claim under the applicable grounds (ie Torture Risk, BOR 2 risk, BOR 3 risk and Persecution risk). It found the applicant’s claim under each of the said grounds to be unsubstantiated and concluded he was not entitled to non-refoulement protection [51] – [74]. The Board also found internal relocation within Bangladesh was a reasonable option, and not unduly harsh, given the applicant is a young, able-bodied man [47].

10.  For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

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

11.  The applicant has filed Form 86 dated 23 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.  The applicant has said, in support of his application, that if he is caught, his enemies will kill him.

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. Before me, the applicant said that he was at liberty to give evidence at the Board’s hearing. But the interpreter did not allow him to tell his full story. He agreed that his duty lawyer had assisted him to set out the full facts in the Non-refoulement Claim Form. I decided not to make further investigation into his allegation that the interpreter did not allow him to tell his full story. He should have raised this issue with the Board at the hearing, which he did not do. As he had set out his full facts in his NCF, I did not consider that his interest would have been prejudiced even if the interpreter did not allow him to tell the full story again before the Board.

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 stated in paragraph 9, supra rejected his evidence in support of his claim and found that there will be no real risk of being harmed or killed by his enemies upon his return to his own country.

17.  There is no valid ground from the applicant 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