HOSSEN GAZI KAMAL AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1162/2019

[2024] HKCFI 2227

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1162 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The 1^st applicant and the 2^nd applicant are husband and wife and the 3^rd applicant is their daughter. In Form 86, their son’s name was deleted. Upon enquiry before this Court, the 1^st applicant confirmed that he had deleted the son from form 86 because the son was born in Hong Kong and he considered that it was unnecessary for his son to make the application.

2.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 11 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

3.  Upon the Court’s advice, the applicants had applied for legal aid, but their application was rejected by the Director of Legal Aid. The proceeding then proceeded.

4.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicants

5.  The applicants are nationals of Bangladesh. The 1^st applicant Husband and the 2^nd applicant Wife, as well as their daughter entered Hong Kong as visitors on 30 June 2016 and were permitted to stay until 14 July 2016. However, they did not depart and had overstayed since 15 July 2016. On 15 July 2016, they surrendered to the Immigration Department. On 28 July 2016 and 1 August 2016, they lodged a non-refoulement claim. Their claims were made on the same basis that, if refouled, they would be harmed or killed by members of Awami League (“AL”) because of the Husband’s involvement in Jamaat-e-Islami (“JEI”). They also feared that they would be harmed or killed by the police because of the false allegation made against the Husband.

6.  According to the Husband, he joined the JEI as an ordinary member in March 1992. AL was said to be the political rivalry of JEI. In many incidents, the AL supporters harassed and assaulted the JEI supporters. They also framed false cases against the JEI members. In 2009, the AL came into power and became the ruling party. For example, one day in 2009, the Husband was arrested for attending an unlawful assembly held by the JEI. He was released after bribing the police.

7.  In early 2009, as the Husband actively promoted the JEI, he became popular in his locality. There was a man called Titu in the applicant’s locality who was associated with the young wing of the AL. He and his uncle often threatened the Husband to quit JEI and join the AL. The AL members also extorted protection money from the Husband. Unable to tolerate the harassments, the Husband reported Titu to the police but it was of no avail. Meanwhile, Titu’s family also took revenge against the Husband’s family after the AL became the ruling party. One day in August 2009, Titu and some men assaulted the Husband. As it was of no use to report to the police, the Husband and the Wife went to Dhaka.

8.  On 12 August 2009, the Wife was abducted by Titu and his gang. She claimed that Titu attempted to rape her and also threatened her. While she was able to escape, she was mentally scared. Later, Titu was arrested by the police. However, he was released and there were no follow-ups on this case.

9.  On 19 January 2010, Titu visited the applicants’ house in Dhaka again. He uttered death threats at the Husband. The Husband called the police, leading to Titu’s second arrest. Titu was later charged with unlawful possession of a firearm but he was not convicted.

10.  After learning that Titu was bailed out, the applicants fled to South Korea. In September 2012, they returned to Bangladesh. They also traveled to the neighboring countries. On 16 June 2013, the Wife gave birth to their daughter. Thus, they returned to Bangladesh.

11.  In around 2013, the Husband was promoted to the general secretary of the JEI in his locality. He learnt that the AL had been making false accusations against the senior leaders or members of the JEI, some attracting death penalties. The AL members made two false accusations against the Husband in October 2015 and early 2016 respectively. As the AL members and the police continued to look for him, the Husband decided to flee to Hong Kong for protection with the Wife and their daughter. Details of their claims are set out at paragraph 6 of the Notice of Decision dated 27 January 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

12.  The Director considered the applicants’ claims in relation to the following risks:

(a) risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

(b) 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”);

(c) 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

(d) 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”).

13.  By way of the Director’s Decision, the Director dismissed their claims. In elaboration, the Director found that (i) there were no substantial grounds to believe that the claimed risk of harm was real or foreseeable [15]; (ii) state protection would be available to them [16]; and (iii) internal relocation was a viable option for them [17]. In passing, the Director also noted that the documents submitted by the applicants could not advance their claims [18].

The Board’s Decision

14.  The applicants appealed the Director’s Decision to the Board. On 3 September 2018, the Board conducted an oral hearing for their appeals.

15.  The Board recapped the applicants’ claims and their personal backgrounds [14]-[95]. Having considered the evidence, the Board made the following findings. It found that the acts or conducts allegedly inflicted by the Husband’s enemies failed to attain the minimum level of severity [130]; and that there were no state involvements [131]-[136]. The Board also considered the applicants’ claims that since the AL was the ruling party they could not seek protection from the police as the police always sided with the ruling party [144]. However, after considering the country of origin information in details [148]-[208], the Board concluded that state protection would be available to them. In any event, internal relocation was also a viable option for the applicants [212]-[224].

16.  For the above reasons, the Board rejected the applicants’ claims and dismissed their appeals.

Application for leave to apply for judicial review

17.  The applicants have filed Form 86 to apply for leave for judicial review of the Board’s Decision.

18.  In the 1^st applicant’s affirmation in support of their joint application, the 1^st applicant simply said that they wanted to apply for judicial review of the Board’s Decision without raising any specific ground.

DISCUSSION

19.  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 applicants’ 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).

20.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the 1^st applicant said he had some documents which the Board had not considered and it disbelieved their evidence. He was unable to obtain those documents when they appeared before the Board. I refused to accept the documents for consideration as I do not have the jurisdiction to make inquiry into the facts of their applications, which is within the exclusive province of the Board. In the Board’s Decision, there was application for adjournment because of the documents were not available. In fact, the main reason for the Board to dismiss their applications was not that the Board disbelieved their evidence.

21.  The applicants were not legally represented before the Board. The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam, Barma and Au JJA, 27 November 2020 held that in such circumstances, it is incumbent upon the Board to have separate consideration of the minor’s claim to see if there are any child-specific issues, which were not brought to the Boar’s attention because of lack of legal representation.

22.  The Court of Appeal in Re: Nguyen Van Anh & Nguyen Bao Chi Cherry [2023] HKCA 1356, Hon Chu VP and Cheung JA, 18 December 2023, held

“ 16. In the present case, the 2nd applicant’s claim is premised fundamentally and entirely on the 1st applicant’s claim. In light of the Board’s rejection of the 1st applicant’s evidence, the factual foundation of her claim failed. It follows from the rejection of the 1st applicant’s claim that there is no basis to support the 2nd applicant’s claim.

17. We also agree with the Judge that on the materials available to the court, they do not disclose any possible concern that there may be non-refoulement grounds that relate specifically and solely to the 2nd applicant but had not been advanced to the Board or considered by it because of the lack of legal representation on behalf of the 2nd applicant before the Board. In the circumstances, although the Board did not appear to have separately considered the 2nd applicant’s claim, we do not consider, having regard to the facts of this case, there is any basis to judicially review the Board’s decision.”

23.  The Board had found that the acts or conducts allegedly inflicted by the Husband’s enemies failed to attain the minimum level of severity [130]. The parents’ claim therefore fails.

24.  When the applicants appeared before me, they did not inform me of any child specific issues relating to the 3^rd applicant upon their return to Bangladesh. The parents simply said that they had stayed in Hong Kong for a long time and the 3^rd applicant had been studying in Hong Kong. They did not want to return to Bangladesh as they would not be protected.

25.  In relation to their worry that they will not have state protection, the Board had made the findings below:

“ 208. There are avenues opened to As to address their concern in [the] relation to perceived lack of state protection, or that the police would only side with AL. State protection would have [be] available to As should they actively seek it.

209. On the evidence, As had not been subjected to “torture”. There was no government or state officials involved under the definition in section 37(1) of the Ordinance. State protection would have been available. There is no evidence that State acquiesced in the acts of T and AL members. There is no evidence that T and his associates were active outside the immediate locality of As’ home area. As had not encountered AL people from 2011 up to the time they left Bangladesh for Hong Kong in 2016.”

26.  On the materials before me, they do not disclose any possible concern that there may be non-refoulement grounds that relate specifically and solely to the 3^rd applicant but had not been advanced to the Board or considered by it because of the lack of legal representation on her behalf.

27.  For the reasons above, I find that the applicants fail to show that they have any realistic prospect of success in their intended judicial review of the Board’s Decision.

CONCLUSION

28.  I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

29.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 3^rd applicant’s application a nullity.