MIAH KADER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1970/2019

[2024] HKCFI 2224

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1970 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 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 did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

The applicant

3.  The applicant is a national of Bangladesh. He surrendered to the Immigration Department on 4 January 2019, admitting that he had sneaked into Hong Kong illegally. By written significations respectively dated 14 and 21 January 2019 and 20 February 2019, he lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his enemy, his wife’s maternal uncle, Mijan and his wife’s paternal uncle, Kalam as they opposed the relationship of him and his wife, Nasreen.

4.  According to the applicant, he started his relationship with Nasreen in 2001. Despite opposition of his enemies, he married Nasreen on 25 November 2014. Mijan went to his house with other people, threatening to kill him. He had to move to live in his friend’s place in Postogola, Dhaka. After Mijan had gone for Saudi Arabia, Kalam took over and demanded him to divorce Nasreen. He refused to do so. Kalam went to his father’s house to look for him in November 2010. His father died because of heart attack on that occasion. In 2006, he left for Hong Kong in order to be safe. He lodged a torture claim. He then withdrew the application and was repatriated on 6 October 2014. Kalam threatened to kill him if he did not divorce. Kalam also demanded money from the applicant as compensation for the divorce. He reported this to police, which refused to help him. In December 2014, he lived in Mirpur, Dhaka for his safety. In July 2015, he moved to Chittagong. In January 2016, he moved to Rangamati. There, he was kidnapped to an abandoned house where he was beaten with bare hands and iron rods. He lost consciousness and found himself in a government hospital, where he had to stay for 3 months for recovery. On early 2017, his enemies went to his house to kidnap his wife. His niece tried to intervened but was strangled to death by a piece of cloth. He reported the matter to police, which did not help him this time. On 23 December 2018, he left Bangladesh for Hong Kong. Details of his story are set out in paragraphs 3-46 of the Board’s Decision.

The Director’s Decision

5.  The Director considered the applicant’s claim in relation to the following risks:

(1) 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”);

(2) 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

(3) 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”).

6.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the risk that he will be harmed or killed is low [14]-[22]; state protection will be available to him [23]-[24]; and internal relocation is viable [25]-[26].

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board. He requested the Board to assess his case without a hearing. The Board acceded to his request.

8.  Having considered the evidence available, the Board found:

(1) The evidence shows that his enemies did not intend to kill him [67-[70].

(2) State protection and internal relocation are available and he can resort to them in order to negate or reduce the risk of harm [71]-[73].

(3) There are no substantial grounds for believing that he will be in danger of being subjected to torture if he is refouled to Bangladesh [83].

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

9.  The applicant has filed Form 86 dated 12 July 2019 for leave to apply for judicial review of the Board’s Decision.

10.  In his affirmation in support of his application, the applicant said he did not have the documents and he would be getting them. To date, he has not produced any document. He did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

11.  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).

12.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13.  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.”

14.  The Board, for the reasons given above, found that the applicant’s claim did not meet any of the requirements under the applicable risks. There is no valid ground from the applicant to challenge the Board’s Decision.

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

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

CONCLUSION

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