MD BILLAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2153/2019

[2024] HKCFI 3389

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2153 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 19 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. However, he was absent at the hearing on 13 November 2024. I shall deal with his application on paper.

The applicant

3.  The applicant, aged 52, is a national of Bangladesh. He last entered Hong Kong illegally on 5 July 2012 and was arrested by the police on 8 July 2012. The applicant made a torture claim on 10 July 2012, which was rejected on 17 June 2013. His appeal was also dismissed on 4 November 2013. Subsequently, the applicant’s non-refoulement claim was assessed on all applicable grounds other than Torture risk^[1]. The claim was made on the basis that, if refouled, he would be harmed or even killed by (i) members of Awami League (“AL”) because he belonged to Bangladesh Nationalist Party (“BNP”) and refused to pay extortion money to AL and (ii) the husband of his ex-wife (“Medhi”) because the applicant refused to take care of his ex-wife and daughters at Medhi’s request.

4.  According to the applicant, he became a BNP supporter since 1988. Starting from 1991, he was continuously threatened by AL members to pay extortion money. In 2003, his shop was looted and he was even assaulted by AL members in February 2004 for failing to pay extortion money. Out of fear, the applicant left Bangladesh for Hong Kong for the first time in July 2004. In 2009, while in Hong Kong, he met an active AL member called Washim, who also extorted money from him and threatened to kill him. To avoid the threat from Washim, the applicant withdrew his torture claim and returned to Bangladesh in January 2010. In 2011, Washim returned to Bangladesh and continued extorting money from him. In February 2012, Washim even threatened him with pistols to pay extortion money. Out of fear, the applicant left Bangladesh for good in March 2012.

5.  Meanwhile, in January 2010, the applicant found out that his ex-wife had an affair with Mehdi, a leader of the student wing of AL. In July 2010, the applicant divorced his ex-wife, who then married Mehdi while the applicant married his present wife. In January 2012, the applicant received threats from Medhi that he would be killed unless he took his ex-wife and daughters back.

6.  The applicant had maintained contact with his present wife. She told him that his ex-wife and daughters kept demanding her to pay for their living, while Washim was still enquiring for his whereabouts. In 2017, his family house was burnt down by AL members. The applicant was of the view that he could not seek protection from the police because they were corrupt and sided with AL. He also considered internal relocation not viable because he lacked the necessary financial ability and that AL members would still be able to find him given their nationwide network.

7.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 29 June 2018 (“the Director’s Decision”).

The Director’s Decision

8.  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”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the low intensity and frequency of past ill-treatment received by the applicant indicated a small future risk of harm upon his return to Bangladesh [14]-[16]; (ii) the matter concerned were merely private disputes and it is unlikely that the applicant would be of adverse interest to the entire AL given the his grass-root involvement in BNP [17]; (iii) there was no evidence showing that the applicant would be pursued outside his locality [18]; (iv) state protection would be available [19]-[23] and (v) internal relocation would be viable [24]-[27].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 5 June 2019, the Board conducted an oral hearing.

11.  Regarding the claimed threat from AL members, the Board found no reliable evidence suggesting that the applicant joined BNP as a member since 1988. Even if he was indeed a BNP member, his participation was only at grass-root level. In any event, the Board found the AL members had no real intention to seriously harm or kill the applicant because the threat/assault were solely for the purpose of money extortion and there was no evidence showing that he was personally targeted [64]-[74].

12.  In relation to the claimed threat from Washim, the Board found the matter was a private dispute and there was no evidence that Washim would materialise his threat [77]-[78]. As to the claimed fear from his ex-wife and Medhi, the Board considered this a mere speculation given that he had never been harmed by them [82]-[83].

13.  Given the low intensity of past ill-treatment received by the applicant, the Board found that he would only face a small future risk of harm upon his return to Bangladesh. In any event, there was also no evidence indicating state involvement in the matter [84]-[86].

14.  Based on such findings and in light of the country of origin information indicating the availability of state protection [42]-[51], the Board rejected the applicant’s claim on Persecution risk, BOR 2 and BOR 3 risk [97]-[122], [127]-[129]. 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

15.  The applicant has filed Form 86 dated 29 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 raised the grounds below to challenge the Board’s Decision.

(1) The hearing bundle was given to him shortly before the board hearing. The documents are in English, but he had no legal assistance or interpretation for the documents. He did not have enough time to prepare for the hearing. He was confused at the hearing. However, he had answered all the questions put to him.

(2) The Board had relied upon news the source of which is not official recognized or it is simply hearsay. It had also relied on the outdated cases, all of which resulted in its speculation that it is safe for him to return to his country.

(3) The Board did not notify him of the Board’s Decision despite his demand of it to do so.

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

(5) The adjudicator had not been to his country to understand the situation there. It is unfair for the Board to make its decision without going there.

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.

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.

21.  As to the reasons under paragraph 16, they are not valid to challenge the Board’s Decision. He had appeared before the Board, but he did not apply for an adjournment for time to prepare his appeal. He was able to answer all the questions from the Board. The Court of Appeal has held that he is not entitled to free legal assistance all the time throughout the proceedings and the lack of assistance in the language is not a valid ground to challenge the Board’s Decision[2]. It is only his bare assertion to say that the Board relied upon information that is not official recognized, or cases that are outdated. There is no evidence in support his accusations. The Board has no duty to notify him of its decision by phone. He had already had screening for his non-refoulement claim on the applicable risks other than BOR 2 risk. Since BOR 2 risk relies on the same facts as other applicable risks, it is not necessary to have screening for BOR 2 risk. The Board can rely on the country of origin information without going to his country physically.

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

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

DISPOSITION

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