SHAHINUR ALAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1905/2019

[2024] HKCFI 2400

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1905 OF 2019

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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 20 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. He appeared before the Court on 14 August 2024.

The applicant

3.  The applicant, aged 44, is a national of Bangladesh.  He entered Hong Kong as a visitor on 2 March 2006 and overstayed since 17 March 2006.  The applicant was arrested by the police on 26 September 2006.  He made a torture claim on 3 October 2006, which was rejected on 19 April 2013.  His subsequent appeal was also dismissed on 31 May 2013.  The applicant lodged a further non-refoulement claim on all applicable grounds other than Torture risk^[1] on 21 June 2013.  The claim was made on the basis that, if refouled, he would be harmed or even killed by someone called Mamun, his family members and his fellow Bangladesh Nationalist Party (“BNP”) members because he was the village vice president of Jubo League (“JL”) and had assaulted Mamun.

4.  According to the applicant, he joined JL as an ordinary member in 2001, which was the youth wing of Awami League (“AL”).  In 2005, he became the vice president of JL in his village.  Meanwhile, Mamun was the BNP vice president in his village. Between 2001 and 2006, BNP members vandalised his party office for about 23 times.  On 3 January 2006, while the applicant was attending a JL meeting with about 80-90 members, 100-150 BNP members including Mamun came to the scene.  This eventually turned into a fight, whereby Mamun hit the applicant’s nose with a whip while the applicant hit Mamun’s head with a chair.  The applicant did not report the fight to the police because he believed that they were under the influence of BNP.

5.  The applicant was hospitalised for three days due to his injury.  During his hospitalisation, he sent someone to make a complaint to the village chairperson, who was a BNP supporter and Mamun’s relative.  As the village chairperson was unwilling to resolve the matter, the applicant relocated to his maternal aunt’s home in Dhaka from January to March 2006.  He then went to India and Nepal as he was informed by his friend that BNP were looking for him in Dhaka.  The applicant however returned to Bangladesh after five days because he felt he could be tracked down in India due to its proximity to Bangladesh and that he could not obtain a visa to stay in Nepal.

6.  Upon return to Bangladesh, the applicant learnt that Mamun had threatened his relatives in Dhaka to disclose his whereabouts.  The applicant also bumped into Mamun’s friend once, who tried to catch him but he managed to escape.  Thereafter, he met a distant relative, who advised him to come to Hong Kong.  Eventually, he arrived in Hong Kong on 2 March 2006.

7.  While in Hong Kong, the applicant heard from his friend that Mamun became mentally unstable.  His family and his fellow BNP members therefore wanted to seek revenge against the applicant.  Meanwhile, the applicant’s mother also told him that Mamun’s family were still asking for his whereabouts and refused to compromise by accepting compensation.

8.  Although the AL had become the ruling party in Bangladesh, the applicant was of the view that he would not be protected by the authorities because he no longer participated in AL activities and that the police would not be able to offer him round the clock protection anyway.  The applicant considered internal relocation not viable as well because Mamun had network throughout Bangladesh and that he also lacked the financial ability to start a new life elsewhere within the country.  

9.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 14 August 2018 (“the Director’s Decision”).

The Director’s Decision

10.  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”).

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that (i) the low intensity and frequency of past ill-treatment by Mamun and other BNP members indicated a small future risk of harm upon his return to Bangladesh [14]-[15]; (ii) given the applicant’s grass-root participation in JL, it is unlikely that he would be specifically targeted by the entire BNP [16]; (iii) there was no evidence showing that Mamun had means to locate the applicant anywhere within Bangladesh [17]; (iv) it is unconvincing that Mamun and his accomplice would still have adverse interest against the applicant given such a long lapse of time [18]; (v) the applicant’s return to Bangladesh after fleeing to India and Nepal, and his delay in seeking non-refoulement protection were inconsistent with the behaviour of someone genuinely in fear [19].

12.  Furthermore, state protection [20]-[23] and internal relocation would also be available [24]-[28]. The applicant’s case therefore failed to meet any of the requirements under BOR 2 and BOR 3 risk [29]-[34] or Persecution risk [35]-[39].

The Board’s Decision

13.  The applicant appealed the Director’s Decision to the Board.  On 21 December 2018, the Board conducted an oral hearing.   

14.  The Board noted that the applicant’s description of the fight with Mamun and other BNP members on 3 January 2006 was rather vague [66].  The only documentary evidence provided by the applicant in support was a medical certificate, which the Board observed could not support the claim that his nose injury was caused by a whip [69].  Meanwhile, it was only hearsay from his friends and mother that Mamun and his family/other BNP members were still looking for him [70].  Furthermore, his claim about the unavailability of police protection and internal relocation was merely his speculation, and that it was also unreasonable that Mamun would still have adverse interest against him after such a long lapse of time [73].

15.  Having considered the available evidence, the Board did not find the applicant to be a credible witness.  The Board was not persuaded that there was a genuine risk of harm against the applicant by Mamun and his family/other BNP members [83]-[84].

16.  In any event, the threat and assault claimed by the applicant did not reach the requisite level of severity and there was no evidence of involvement by Bangladesh state agent in the matter.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk or Persecution risk [55]-[62], [85]-[98].  Furthermore, state protection [47]-[52], [81] and internal relocation [53]-[54] would also be available according to the country of origin information.

17.  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

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

19.  In his affirmation in support of his application, the applicant has raised the grounds below.

(1)  He did not have legal assistance for his appeal and the hearing bundle was given to him shortly before the hearing without provision of translation or interpretation.  Therefore, he did not have sufficient time to prepare for his case.  He was confused, but he had answered all the questions put to him.

(2)  The Board did not notify him of its Decision by phone despite his request.

(3)  The Board had relied on the source of news is not officially recognized or it is simply hearsay.  It had also relied on outdated cases.  All these resulted in it making groundless speculations that it is safe for him to return to his country.

(4)  There was no screening for his BOR 2 risk claim.

(5)  The Board reached its decisions without going to his country to understanding his real situation in his country.

DISCUSSION

20.  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).

21.  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 he was free to express himself before the Board.  He asked the Court to review the Board’s Decision.

22.  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.”

23.  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.

24.  For those grounds under paragraph 19, he is not entitled to free legal representation throughout the proceedings^[2] and he is not entitled to interpretation all the time^[3]. He did not ask the Board to adjourn the hearing to give him more time for his preparation and he said that he had answered all the questions put to him by the Board.  The law does not provide that the Board has to notify him of its decisions by phone.  There is no evidence to support his allegation that the Board had made speculations that he is safe to return to his country.  There had been screening by the Director for BOR 2 risk.  It is unnecessary for the adjudicator to go to his country for the situation there as it can rely on the country of origin information.  All those grounds fail.

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

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

DISPOSITION

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