CHOWKIDAR ABUBOKOR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2381/2019

[2025] HKCFI 116

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2381 OF 2019

_____________

BETWEEN

_____________

_______________

J U D G M E N T

_______________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 24 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 9 December 2024. I shall deal with his application on paper.

The applicant

3.  The applicant, aged 45, is a national of Bangladesh. He entered Hong Kong illegally on 9 November 2015 and was arrested by the police on the same day. The applicant made a non-refoulement claim on 14 November 2015. The claim was made on the basis that, if refouled, he would be harmed or even killed by his three brothers and members of Awami League (“AL”).

4.  According to the applicant, he became a member of Bangladesh Nationalist Party (“BNP”) at the age of around 16-17, while his family were AL members. In 2013, the applicant had an intense argument with his family after he took away some family money. He then left for Singapore, where he stayed for a year. When he returned home, he continued to have frequent arguments with his three brothers. One day, about a month after his return, the applicant was attacked by his three brothers and around 10-12 AL members with knives and choppers. The applicant was hospitalised for a month, after which he relocated to Dhaka and stayed there for 3-4 months. Eventually, the applicant left Bangladesh on 4 November 2015 and sneaked into Hong Kong from Mainland China on 9 November 2015.

5.  The applicant was of the view that he could not seek protection from the police because they sided with the ruling party AL. He considered internal relocation not viable as well because he lacked the necessary financial capability and connection. He also worried that he would be found given the extensive network of AL throughout Bangladesh.

6.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 18 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 Persecution risk, Torture 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 that the risk of harm was not as imminent as he claimed [11]-[12]; (ii) there was no evidence showing that his three brothers and the AL members were as powerful as he asserted [13]; (iii) state protection would be available [14]-[17] and (iv) internal relocation would be viable [18]-[19].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 23 May 2019, the Board conducted an oral hearing.

10.  The Board found the applicant’s claim lacked credibility given the inconsistencies in his evidence [25]-[36]. In any event, the matter concerned was a family dispute that had little relevance to politics, as evidenced from his uneventful departure at the Bangladeshi border. The level of injury the applicant experienced also did not reach the requisite level of severity and there was no indication that his three brothers and AL members had continuous adverse interest towards him [38]-[42]. Furthermore, state protection would be available and that ordinary BNP members or supporters should not face a real risk of harm according to the country of origin information [45]-[54].

11.  Based on such findings, the Board rejected the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk [55]-[91]. The Board also found internal relocation a viable option for the applicant [92]-[95].

12.  The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

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

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

14.  In his affirmation in support of his application, the applicant had raised the grounds below to challenge the Board’s Decision:

(1) the investigation system of the Board is wrong;

(2) he did not have a lawyer for the appeal;

(3) he did not have an interpreter to explain the Board’s Decision to him; and

(4) he did not have enough time to prepare for the hearing.

DISCUSSION

15.  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).

16.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant confirmed that he understood the Board’s Decision.

17.  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.”

18.  The grounds under paragraph 14 will not advance his application. Ground (1) is his opinion without any evidence in support. Ground (2) is not valid as the Court of Appeal has held that he is not entitled to free legal assistance all the time throughout the proceedings. Ground (3) also fails as the Court of Appeal has held that this is not a valid reason to challenge the Board’s Decision and he may obtain assistance himself. Ground (4) is not valid as he has not made an application to the Board for time to prepare for the hearing himself.

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

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

DISPOSITION

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