SIDDIK ABU BAKAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1995/2019

[2024] HKCFI 2747

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1995 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 21 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 25 September 2024.

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 37, is a national of Bangladesh. He entered Hong Kong illegally on 5 October 2012 and was arrested by the police on the same day. The applicant made a torture claim on 13 October 2012, which was rejected on 16 January 2013. He lodged a further non-refoulement claim on all applicable grounds other than Torture risk[1] on 10 March 2014 and 25 April 2014. The claim was made on the basis that, if refouled, he would be harmed or even killed by members from Awani League (“AL”) because he was the General Secretary of Jubo Dal, the youth wing of the Bangladesh Nationalist Party (“BNP”).

5.  According to the applicant, he had been affiliating with BNP since 18. In 2006, he was appointed as the General Secretary of Jubo Dal in his locality. In the end of December 2010, the applicant and his fellow BNP members were assaulted and threatened by some AL members while they were having a meeting at the BNP office. After the assault, the applicant relocated to his aunt’s house, where he stayed for 20 days. During his stay at his aunt’s home, his family members had been attacked and threatened by AL members. Thereafter, the applicant went to his friend’s home in Dhaka, during which he learnt from his parents and friend that AL members continued searching for him and had even filed a false case against him.

6.  In 2012, the applicant went to India. He however returned after two days because he found India unsafe. Eventually, he left Bangladesh for China on 2 October 2012 and then sneaked into Hong Kong through Shenzhen on 5 October 2012.

7.  The applicant maintained contact with his family while in Hong Kong and was told that another false case was filed against him following a demonstration organised by Jubo Dal. The applicant was of the view that he could not seek protection from the police. He believed that their inaction when the matter was reported to them previously showed that they were under the influence of AL. The applicant also considered internal relocation not viable because AL had a strong network all over Bangladesh, so that he would be easily located.

8.  Details of the applicant’s story can be found in paragraph 9 of the Director’s Decision dated 25 May 2018 (“the Director’s Decision”).

The Director’s Decision

9.  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”).

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the applicant’s swift return from India to Bangladesh was inconsistent with the conduct of someone genuinely in fear, but rather showed that the claimed risk was not as imminent as he claimed [18]; (ii) the low intensity and frequency of past ill-treatment from AL members indicated a small future risk of harm upon his return to Bangladesh [20]; (iii) given the applicant’s grass-root participation in BNP, it is unlikely that he would be of adverse interest to the entire AL [21]; (iv) the claimed false cases were based merely on hearsay [22]-[24]; (v) there was no evidence showing that he would be denied access to justice and a fair trial [26]-[29]; (vi) state protection would be available [30]-[39]; (vii) internal relocation would be viable [40]-[46] and (viii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [47]-[52] or Persecution risk [53]-[58].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. On 10 May 2019, the Board conducted an oral hearing.

12.  The Board found there was no reliable evidence showing the applicant’s claimed involvement in Jubo Dal/BNP or that he was specifically targeted by AL. In any event, he only suffered minor injury from one single assault incident, so that there was no reasonable ground to believe that he would face serious harm upon return to Bangladesh. Meanwhile, the Board attached no weight to the applicant’s claims that his family were attacked and that AL members continued looking for him as they were merely hearsay evidence without any support [64]-[78].

13.  As for the claimed false case, the Board considered it unreliable and of low credence. Even if it was true, the country of origin information indicated that the applicant would not be deprived of the right to a fair trial and due process [81]-[83].

14.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk or BOR 2 and BOR 3 risk [93]-[118] [123]-[125]. The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

15.  The applicant has filed Form 86 dated 15 July 2019 for leave to apply for judicial review of the Board’s Decision.

16.  In his affirmation in support of his application, the applicant did not raised any specific ground to challenge the Board’s Decision.

DISCUSSION

17.  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).

18.  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 that the Board was not wrong and he asked the Court to review the Board’s Decision.

19.  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.”

20.  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.

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

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

DISPOSITION

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