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HCAL 2230/2019
[2025] HKCFI 113
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 2230 OF 2019
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BETWEEN
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Shopun Ahkun |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
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| Before: |
Deputy High Court Judge K.W. Lung in Court |
| Date of Hearing: |
9 December 2024 |
| Date of Judgment: |
8 January 2025 |
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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 24 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. However, he was absent at the hearing on 9 December 2024. I shall deal with his application on paper.
The applicant
3. The applicant, aged 41, is a national of Bangladesh. He entered Hong Kong as a visitor on 5 March 2013. He had overstayed since 20 March 2013 and was arrested by the police on 7 June 2013. The applicant made a torture claim on 10 June 2013, but was rejected on 17 January 2014. He lodged a further non-refoulement claim on all applicable grounds other than Torture risk[1] on 8 April 2014. The claim was made on the basis that, if refouled, he would be harmed or even killed by members of Awami League (“AL”) because he refused to join them. He also claimed that there was a false case filed against him by AL, so that he was wanted by both the Bangladeshi authorities and the AL members.
4. According to the applicant, he joined Bangladesh Nationalist Party (“BNP”) as an ordinary member in 2006. In December 2012, after the applicant refused joining Chhatra League, i.e. the student wing of AL, he started to receive threats. In mid-2013, two strangers, which the applicant believed were affiliated to AL, told him that a court case about firearms was filed against him (“the court case”). Subsequently, the applicant learnt from his teacher that the court case was about him hiring two terrorists to carry firearms to Dhaka and an arrest warrant was issued against him. In February 2013, the same two strangers approached the applicant twice and requested him to make a confession. Meanwhile, the applicant also feared harm from the two terrorists, as they could not have sentence reduction due to his failure to confess. Out of fear, the applicant left Bangladesh for Hong Kong in March 2013.
5. While in Hong Kong, the applicant maintained contact with his parents, who informed him that the police and the AL members were looking for him. Since early 2018, the applicant had received three threatening messages to his Hong Kong mobile phone, including one threatening that he would be killed upon return to Bangladesh.
6. The applicant was of the view that he could not seek protection from the police because AL was in power. He also considered internal relocation not viable because AL was still the ruling party and that the police would also be after him due to the court case.
7. Details of the applicant’s story can be found in paragraph 9 of the Director’s Decision dated 24 August 2018 (“the Director’s Decision”).
The Director’s Decision
8. 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”).
9. By way of the Director’s Decision, the Director dismissed the applicant’s claim on Persecution risk, BOR 2 and BOR 3 risk. The Director found that the low intensity and frequency of past ill-treatment received by the applicant indicated a small future risk of harm upon his return to Bangladesh. The Director also had doubts towards the court case and found the applicant’s fear of being harmed by the two terrorist a mere speculation [15]-[21]. Furthermore, state protection [22]-[27] and internal relocation would also be available [28]-[32].
The Board’s Decision
10. The applicant appealed the Director’s Decision to the Board. On 19 December 2018, the Board conducted an oral hearing.
11. The Board noted that the applicant gave generally consistent evidence and was convinced on the balance of probabilities that his account of events was credible [27]. However, the Board considered that the low frequency and intensity of threat by AL members indicated that they had no real intention to seriously harm or kill the applicant. It was also unreasonable that AL would mobilise members simply to kill an ordinary member like the applicant. Furthermore, the court case was highly doubtful given the applicant’s uneventful passing through at the Bangladeshi border [28]-[30].
12. In any event, both state protection and internal relocation would be available according to the country of origin information [32]-[36]. Based on such findings, the Board rejected the applicant’s claim on Persecution risk, BOR 2 and BOR 3 risk [9]-[16], [37]-[39].
13. 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
14. The applicant has filed Form 86 dated 6 August 2019 for leave to apply for judicial review of the Board’s Decision.
15. In his affirmation in support of his application, the applicant stated that the adjudicator had no practical idea about his claim and he did not have a lawyer to assist him for the hearing, which is his basic right.
DISCUSSION
16. 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).
17. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
18. 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.”
19. The reasons given under paragraph 15 do not assist the applicant. The adjudicator may rely on the COI to understand his situation in his country. The Court of Appeal has held that he is not entitled to free legal assistance all the time throughout the proceedings[2].
20. There is no reason that the Court should interfere with the Board’s finding of the facts.
21. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
DISPOSITION
22. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
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(K.W. Lung) |
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Deputy High Court Judge |
The applicant was unrepresented and did not appear.
[1] Risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115
[2] The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178, Hon Lam & Chu JA, 26 March 2018, held:
“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”
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