SHEIKH MOHAMMAD NUR MOHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1891/2019

[2024] HKCFI 2391

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1891 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 27 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.

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 36 is a national of Bangladesh. He entered Hong Kong illegally on 13 February 2013, and on the same day he was arrested by police. He was referred to the Immigration Department. He raised a torture claim, which the Director rejected on 28 November 2013. By way of written representation dated 11 December 2013, the applicant lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his paternal uncle Jamal over a land dispute.

5.  According to the applicant, his grandfather had conveyed a piece of land to his father and his paternal uncle, Jamal in equal shares. His father then passed his share of land to him and his brother, Kitap in equal shares. Jamal wanted to dispossess his father’s piece of land from him and his brother. He had brought with him 10 people to the land and told the applicant and his brother not to farm on their pieces of land or they would be in trouble. The applicant sought assistance from his maternal uncle, Barek. Barek attempted to settle the dispute by mediation. A mediation meeting was held, but it failed to come to any settlement. Then Barek and his mother leased out the applicant’s piece of land to a tenant, who was a member of the Bangladesh Nationalist Party. Jamal was very angry and threatened to kill him and his brother Kitap. In February 2011, he was confronted by Jamal with 6 unknown men. They assaulted him with knife. He was seriously injured and fell unconscious. He found himself in a hospital when he came round. He had to receive sutures on his upper jaw and on the back of his head. Berek and his mother reported the matter to police, which took no action. His brother, Kitap had disappeared and could not be found. He left Bangladesh for Hong Kong for safety on 13 February 2013. Details of his story are set out in paragraph 7 of the Board’s Decision.

The Director’s Decisions

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”), which he had raised and rejected by the Director on 28 November 2013;

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 Notice of Decision dated 21 September 2018 (“Director’s Decision”), the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) low frequency of past ill-treatment from Jamal is indicative of small future risk of harm upon his return to Bangladesh [13]-[16]; (ii) state protection is available to him [17]-[21]; and internal relocation is viable [22]-[27].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 8 May 2019, the Board conducted an oral hearing for his appeal and the applicant had given evidence before the Board.

9.  Having considered the evidence, the Board had made the following findings:

“49. Having carefully considered all the information supplied, I find that the Appellant has not made out a case in respect of any of the three grounds [Persecution risk, BOR 2 and BOR 3 risks]…

51. In giving his evidence at the Hearing, the Appellant was vague and evasive and claimed to be unable to remember large parts of his story. Much of his evidence was inconsistent or contradictory, and lack the level of detail that could reasonably be expected of a credible witness. I consider little of the Appellant’s evidence to be reliable.

57. … I accept that there was a dispute over land between JAMAL and the Appellant. However, I do not consider that the Appellant has established to the requisite standard of proof that he was ever physically attacked or harmed by JAMAL, or his associates, or that they threatened to kill the Appellant.”

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

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

11.  In his affirmation in support of his application, the applicant did not raised by specific ground to challenge the Board’s findings above.

DISCUSSION

12.  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).

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

14.  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.”

15.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

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

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

DISPOSITION

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