ISLAM SHEIKH SHARIFUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2198/2019

[2024] HKCFI 3343

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2198 OF 2019

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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 15 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. He appeared this Court on 13 November 2024.

The applicant

3.  The applicant, aged 36, is a national of Bangladesh. He entered Hong Kong illegally on 12 May 2013 and was arrested by the police on 7 July 2013. The applicant made a non-refoulement claim on 18 November 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 refused to quit Hefajat Islam (“HI”) and join AL.

4.  According to the applicant, he joined HI in 2012. Due to his refusal to quit HI and join AL, his shop was vandalised by AL members in October 2012. In around late 2012, he was also threatened and assaulted by AL members. To avoid the continuous threats, the applicant relocated to Dhaka and departed Bangladesh for China on 4 May 2013. Eventually, he sneaked into Hong Kong on 12 May 2013.

5.  The applicant was of the view that he could not seek protection from the police because they would not take any action against the ruling AL. He also considered internal relocation not viable because AL members would still be able to find him, given that AL was the ruling party.

6.  Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 13 September 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 risk and BOR 3 risk. The Director found that (i) the low intensity and frequency of past ill-treatment from AL members indicated a small future risk of harm upon his return to Bangladesh [14.1]-[14.3]; (ii) given the applicant’s grass-root participation in HI and his long absence from Bangladesh, any adverse interest from AL should have diminished [14.4]; (iii) there was no evidence showing that AL would pursue him nationwide [14.4]; (iv) state protection would be available [15] and (v) internal relocation would be viable [16].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 26 April 2019, the Board conducted an oral hearing.

10.  The Board found there was no basis for the applicant’s claimed fear. Although he repeatedly refused to quit HI and join AL, the AL members never escalated their action and carried out their threats. Upon consideration of the country of origin information, the Board also noted that reforms had been taken by the Bangladeshi government to improve the performance of the police. Based on such findings, the Board rejected the applicant’s claim on Torture risk, Persecution risk, BOR 2 risk and BOR 3 risk [7]-[16], [36]-[54]. Furthermore, internal relocation would also be a viable option for the applicant [55]-[60].

11.  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

12.  The applicant has filed Form 86 dated 2 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 raised the grounds below to challenge the Board’s Decision.

a.  He was given no chance to make his oral or written submissions to the Board.

b.  The Board has relied on the source of news which is not officially recognized or it is simply hearsay. It has also relied on the outdated cases, resulting in it making groundless speculations that it is safe for him to return to his country.

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 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).

15.  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. Nevertheless, he asked the Court to review the Board’s Decision.

16.  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.”

17.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. As to the reasons under paragraph 13, ground (1) is a non-point. As he appeared before the Board, he was at liberty to make submissions, oral or written, to the Board. Ground (2) is his bare assertion without any evidence in support. Those reasons are not valid to challenge the Board’s Decision.

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

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

DISPOSITION

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