MIA MILON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1718/2019

[2024] HKCFI 1710

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1718 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and the Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 14 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 ask for a hearing.  However, he was absent at the hearing on 29 May 2024 without prior notice to the Court.  I shall deal with his application on paper.

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 40, is a national of Bangladesh.  He left for Mainland China on 27 July 2012 and subsequently entered Hong Kong illegally.  On 29 April 2013, he was arrested by the police.  The applicant made a torture claim on 2 May 2013, which was rejected on 12 September 2013.  The subsequent appeal was also dismissed on 3 June 2014.  The applicant made a further non-refoulement claim on all applicable grounds other than Torture risk^[1] on 18 October 2013.  The claim was made on the basis that, if refouled, he would be harmed or even killed by people from Awami League (“AL”) because he belonged to Bangladesh Nationalist Party (“BNP”) and he refused to join AL.

5.  According to the applicant, he joined the BNP as an ordinary member since 1998.  One day before the parliamentary election in around 2008, seven people belonging to AL (“the seven AL people”) came to his home while he was away.  The applicant’s father later conveyed to the applicant that the seven AL people had come to warn him not to work for BNP but join AL.  After 16-17 days, the seven AL people returned to the applicant’s home while he was away.  Upon learning that the applicant refused to stop working for BNP, they destroyed the television and mirror in his room.  When the applicant returned home, his father advised him not to involve in politics anymore, to which he refused.  He then had a quarrel with his father and left home for Dhaka thereafter. 

6.  The applicant stayed in Dhaka for about 2.5 years, during which he would return to his hometown once or twice a month to arrange BNP meetings.  One day in 2011, about 2-3 days after a BNP meeting, he and his friends had a fight with five out of the seven AL people.  The applicant suffered injuries during the fight and sought medical treatment from a doctor.  On the next day, the applicant and his friends reported the incident to the police.  However, the police did not take any follow up action and even informed the seven AL people about the report made against them.  Subsequently, the applicant received phone calls from one of the seven AL people, blaming him for reporting the case to the police.  The seven AL people then started chasing after the applicant.  Out of fear, he departed Bangladesh for India.

7.  After staying in India for 1-2 days, the applicant returned to Bangladesh because he did not feel safe.  In July 2012, the applicant left Bangladesh for China.  Eventually, he sneaked into Hong Kong from Shenzhen.

8.  The applicant spoke to his mother over the phone in around April 2018 while in Hong Kong.  She told him that the situation was getting worse as she sometimes saw the seven AL people walking around in his hometown.  The applicant also noted from the television that AL had become more aggressive towards opposite parties.

9.  The applicant was of the view that he could not seek protection from the police because AL was the ruling party and had great influence over the police. He also considered internal relocation not viable because AL had a nationwide network, which they could utilise to locate him.

10.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 21 June 2018 (“the Director’s Decision”).

The Director’s Decision

11.  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”).

12.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director was of the view that 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. In fact, given that the applicant’s past involvement in BNP was only at the grass-root level, he would not attract adverse interest from the whole AL party in pursuing him [12]-[15].

13.  In any event, (i) state protection would be available to him [16]-[20]; (ii) internal relocation would be viable [21]-[25] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [26]-[31] or Persecution risk [32]-[36].

The Board’s Decision

14.  The applicant appealed the Director’s Decision to the Board.  On 4 April 2019, the Board conducted an oral hearing.   

15.  The Board noted that the applicant had not made any attempt to seek non-refoulement protection in Mainland China and that he only sought protection in Hong Kong after being arrested a few months later [25]-[26].  It did not accept the applicant’s excuse for his inaction and had doubts towards his credibility [27]-[28].

16.  The Board also noted a number of inconsistencies and contradictions in the applicant’s evidence, regarding (i) his first encounter with the seven AL people; (ii) his stay in India; (iii) injuries he suffered from the fight in 2011 and the treatment received thereafter; and (iv) places he stayed while in Dhaka [40].  Furthermore, there was no reliable evidence showing that the applicant was specifically targeted by AL and the claimed injuries he suffered did not reach the minimum level of severity.  In any event, the claimed threats also happened a long time ago [41].

17.  Based on such findings and in light of the country of origin information indicating the availability of state protection [55]-[59], [62] and internal relocation [73]-[78], the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk [43]-[54], [63], [79], or BOR 2 and BOR 3 risk [64]-[71], [80]-[81].

18.  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

19.  The applicant has filed Form 86 dated 21 June 2019 to apply for leave for judicial review of the Board’s Decision.

20.  In his affirmation in support of his application, the applicant did not raise any specific ground.

DISCUSSION

21.  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).

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

23.  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.”

24.  For the reasons given above, the Board rejected the applicant’s evidence in support of his claim.  I consider that the Board was entitled to do so under those circumstances.

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

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

CONCLUSION

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

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1