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HCAL 2389/2019
[2025] HKCFI 192
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 2389 OF 2019
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BETWEEN
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Madber Abdul Samad |
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: |
18 December 2024 |
| Date of Judgment: |
28 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 9 August 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant asked for a hearing. However, he was absent at the hearing on 18 December 2024. I shall deal with his application on paper.
The applicant
3. The applicant, aged 39, is a national of Bangladesh. He entered Hong Kong illegally on 26 May 2015 and was arrested by the police the following day. The applicant made a non-refoulement claim on 30 May 2015. 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 supported the Bangladesh Nationalist Party (“BNP”).
4. According to the applicant, he became a Bangladesh Nationalist Party (“BNP”) member in around 2005. A few months after the general election in January 2014, he started to receive threats from AL members in his locality, which continued until April 2015. On 9 April 2015, the applicant went to India, but returned to Bangladesh three days later because he failed to seek protection there. On 22 May 2015, he left Bangladesh for China and he eventually sneaked into Hong Kong from Shenzhen on 26 May 2015.
5. The applicant was of the view that he could not seek protection from the police because AL was in charge of law enforcement in Bangladesh. He also considered internal relocation not viable because AL members would be able to trace him through their powerful network.
6. Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 16 November 2018 (“the Director’s Decision”).
The Director’s Decision
7. 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”).
8. By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the low intensity and frequency of past ill-treatment from AL members indicated that they had no real intention to seriously harm or kill the applicant [12]-[13]; (ii) given the applicant’s grass-root involvement in BNP and the lack of evidence showing that AL members had the means to search for him throughout the country, his claimed fear was merely speculative [14]; (iii) the conduct of the applicant was inconsistent with that of someone genuinely in fear [15]; (iv) state protection would be available [16]-[18] and (v) internal relocation would be viable [19]-[23].
The Board’s Decision
9. The applicant appealed the Director’s Decision to the Board. On 18 April 2019, the Board conducted an oral hearing.
10. The Board found the applicant appeared to be a person who existed in isolation as to what was happening in Bangladesh at the material time. Although the applicant might have little knowledge about the political personalities in his locality, the Board did not find him to be a BNP activist, so that his claim for being targeted by AL members had no credibility [69]-[77]. In any event, internal relocation would also be a viable option [78]-[80].
11. Based on such findings, the Board rejected the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [11]-[24], [81]-[90]. His appeal was therefore dismissed and the Director’s Decision was confirmed.
Application for leave to apply for judicial review of the Board’s Decision
12. The applicant filed Form 86 on 19 August 2019 for leave to apply for judicial review of the Board’s Decision.
13. In his affirmation in support of his application, the applicant has raised the grounds below:
(1) he was not legally represented and had no legal assistance;
(2) the hearing bundle was given to him shortly before the Board hearing, he did not have sufficient time for his preparation and he did not have interpretation service;
(3) he was confused at the hearing, but he had answered all the Board’s questions;
(4) the Board was unfair to say that his evidence was not credible;
(5) the Board did not notify him of the Board’s Decision by phone despite his request;
(6) the Board relied on source of news which is not officially recognized or is hearsay; it had also relied on outdated cases, resulting in it making groundless speculation that he is safe to return to his country; and
(7) the adjudicator had not been to his country to understand the situation there.
DISCUSSION
14. 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 CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).
15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
16. The grounds under paragraph 13 do not advance his case. Ground fails as the Court of Appeal has held that he is not entitled to free legal representation all the time[1]; grounds (2) fails as there was no application before the Board for more time to prepare his appeal; grounds (3) and (4) are his bare assertions only; ground (5) fails because the Board has no obligation to notify him by phone; ground (6) fails as this his only his personal view; ground (7) fails because the Board had relied on the country of origin information.
17. The applicant has failed to show that his intended application has any realistic prospect of success.
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.
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(K.W. Lung) |
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Deputy High Court Judge |
The applicant was unrepresented and did not appear.
[1] 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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