JAHANGIR HOSSAIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1501/2019

[2024] HKCFI 1195

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1501 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 absent 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 29 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 did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, 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 48, is a national of Bangladesh. He entered Hong Kong as a visitor on 23 November 2006 and he overstayed since 8 December 2006. On 22 September 2007, he was arrested by the police. The applicant lodged a torture claim on 18 September 2008. The claim was made on the basis that, if refouled, he would be harmed or even killed by the six members of the Bangladesh Nationalist Party (“BNP”) because he switched to another party named Bikalpa Dhara Bangladesh (“BDB”) and he refused to pay the six BNP members upon their extortion. Upon the commencement of the unified screening mechanism on 3 March 2014, his torture claim had been taken to be a non-refoulement claim and was assessed on all applicable grounds.

5.  According to the applicant, he was a BNP member in 1999. The former leader of BNP left BNP and formed BDB in March 2004. The applicant followed him and join BDB, but he did not go through any formal procedures for quitting BNP. Around a month after joining BDB, the six BNP members started harassing the applicant at his grocery shop. They frequently came to his shop to extort money from him and forcibly took his goods. They also threatened to kill him if he failed to return to BNP. The applicant claimed that the six BNP members would punch him and slap him when he refused to pay them money or when he tried to stop them taking his goods. The applicant did not report the extortions and minor assaults to the police, but only to BDB leaders.

6.  In late October 2005, the six BNP members came and started extorting money from the applicant again. After the applicant’s refusal, they assaulted him intermittently for around 30 minutes. Eventually, they left without taking any money, but simply reiterated that they would kill the applicant if he did not comply with their extortion demand. The applicant then attended hospital and stayed there for 4-5 days. Again, he did not report the incident to the police, but only to BDB leaders. He also sought help from the chairman at his locality (“the chairman”), who was a BNP member. The chairman assured the applicant that he would tell the six BNP members not to disturb him again. A week later, the applicant bumped into the six BNP members on the street. They were aware of the applicant’s complaint to the chairman against them, but they maintained their extortion towards the applicant. The applicant then fled to Dhaka and stayed with his friend to avoid further attack. During his one-year stay in Dhaka, he maintained contact with his family, who informed him that the six BNP members frequently came to ask for his whereabouts.

7.  In early September 2006, the applicant was spotted by the six BNP members at Dhaka near the place he stayed, but he managed to escape eventually. The applicant then decided to leave Bangladesh to save his life and to avoid further attack. The applicant maintained contact with his family and friends after leaving Bangladesh. He was informed that the six BNP members were still seeking his whereabouts, but they ceased visiting his family around one year after he left.

8.  The applicant was of the view that he could not seek help from the police because they were corrupt and he had no money to bribe them. Moreover, as BNP was in power, the police would not even entertain him. The applicant also considered internal relocation within Bangladesh not viable because BNP members, including the six BNP members, would eventually locate him through their political networks and connections.

9.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 28 April 2014 (“the Director’s 1^st Decision”).

The Director’s Decisions

10.  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 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”).

11.  By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim. The Director found that the low intensity and frequency of past ill-treatment from the six BNP members is indicative of a small future risk of harm upon his return to Bangladesh. In fact, the political situation in Bangladesh showed that BDB were getting closer to BNP and even became its close political partner in recent political issues [13]-[14].

12.  In any event, (i) state protection will be available to him upon his return [15]-[18]; (ii) internal relocation is viable [19] and (iii) the applicant’s case failed to meet any of the requirements under BOR 3 risk [20]-[22], Persecution risk [23]-[27] or Torture risk [28]-[31].

13.  In the Notice of Further Decision dated 20 September 2017, the Director also rejected the applicant’s claim on BOR 2 risk (“the Director’s 2^nd Decision”) for the reason that there was no evidence to show that his right to life under BOR 2 would be violated upon his return.

The Board’s Decision

14.  The applicant appealed the Director’s 1^st Decision to the Board. Subsequently, the Director also notified the applicant that the Board would determine the appeal on all applicable grounds at one go, i.e. including BOR 2 risk and hence the Director’s 2^nd Decision. On 29 October 2018, the Board conducted an oral hearing.

15.  The Board noted there were various inconsistencies in the evidence given by the applicant during the oral hearing and in his non-refoulement claim form, particularly in relation to his level of involvement in BNP, when he started to receive threats from the six BNP members, when he made the complaint to the chairman and his length of stay in Dhaka. The Board also noted the applicant had limited knowledge towards BNP [41]-[83].

16.  Based on such findings, the Board rejected every aspect of the applicant’s claim [84]-[86] and concluded that his case failed to meet any of the requirements under Torture risk [87]-[98], BOR 2 and BOR 3 risk [99]-[109] or Persecution risk [110]-[121]. The applicant’s appeal was therefore dismissed and the Director’s 1^st and 2^nd Decisions were confirmed.

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

17.  The applicant has filed Form 86 dated 3 June 2019 for leave to apply for judicial review of the Board’s Decision.

18.  In his affirmation in support of his application, the applicant said that the Board had disregarded his dangerous situation.

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.

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 claimed risks were unfounded.

23.  There is no valid ground from the applicant to challenge the Board’s Decision.

CONCLUSION

24.  I refuse to grant leave for 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