ISLAM MOHAMMAD ARIFUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1739/2019

[2024] HKCFI 1922

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1739 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 Applicant being absent in open court;

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 30 May 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.  I shall deal with his application on paper.

The applicant

3.  The applicant, aged 34, is a national of Bangladesh.  He entered Hong Kong illegally on 26 April 2015 and was arrested by the police on the same day.  The applicant made a non-refoulement claim on 29 April 2015.  The claim was made on the basis that, if refouled, he would be harmed or even killed by members from Awami League (“AL”), because he belonged to Bangladesh Nationalist Party (“BNP”) and refused to stop engaging in BNP activities.

4.  According to the applicant, he became a BNP member in around 2007 or 2008.  In October 2010, the applicant was approached by some AL members on the street, asking him to refrain from joining BNP activities.  In November or December 2010, the applicant encountered a group of four AL members (“the four AL members”) on the street, who assaulted him and warned him to stop working for BNP.  The applicant sought medical treatment and reported the incident to the police.  About 10 - 15 days later, the applicant was assaulted by the four AL members again after he attended a BNP procession.  The applicant reported the assault to the police, but no action was taken.  

5.  In around January 2011, a day after the applicant took part in another BNP programme, a group of AL members accused him of not listening to their warnings and broke his left forearm.  The applicant lost consciousness during the process and was sent to a hospital.  Subsequently, he discovered that his Achilles tendon had also been lacerated and he was unable to walk for three months.  Upon discharge, he reported the incident to the police station in his locality as well as to a higher-level police station (“the higher-level police station”).   

6.  In April 2011, while the applicant was taking a rickshaw, he was dragged off by the four AL members and was taken into a nearby forest.  After tying the applicant to a tree and blindfolding him, the four AL members beat him up including the use of a metal-like weapon to hit his head.  They also threatened to kill him and warned him that he would not be forgiven if he continued participating in BNP events.  The applicant sought medical treatment upon release and reported the matter to the higher-level police station.

7.  Despite the various assaults from AL members, the applicant continued his participation in BNP activities because of his loyalty to the party.  One night in September 2011, when the applicant was on his way home after a BNP meeting, he was intercepted by three AL members.  They tied the applicant’s hands and took him to a dilapidated house in the forest.  Thereafter, he was left alone. A couple of hours later, the applicant managed to untie himself, broke a window and escaped.  The applicant was too frightened to return home and he stayed with a friend instead.  Meanwhile, he also received threatening calls from AL people asking for his whereabouts.

8.  On 18 October 2011, the applicant departed to India.  On 11 January 2012, he returned to Bangladesh and stayed with a friend in Dhaka for a week, during which he received phone calls from three strangers claiming to be AL members, telling him that they knew he was in Dhaka.  The applicant therefore relocated elsewhere and changed his SIM card.  Upon recommendation from his friend, the applicant travelled to Mainland China on 25 February 2014, he met a Bangladeshi suggesting him to go to Hong Kong.  After the applicant returned to Bangladesh on 11 March 2014, he continued to receive threatening calls from AL. On 10 April 2015, the applicant left Bangladesh for China again.  Eventually, he sneaked into Hong Kong from Shenzhen by boat on 26 April 2015.

9.  The applicant no longer had contact with his family after he left Bangladesh.  He was however informed by his friend that AL was still after him. The applicant was of the view that he could not seek protection from the police because all his previous reports to them were futile.  He also considered internal relocation not viable because AL managed to utilise their nationwide network to find his number and whereabouts when he relocated in the past.

10.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 25 August 2017 (“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”);

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”).

12.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that the applicant failed to adduce concrete evidence to support his claims.  Moreover, there was no indication that AL members intended to seriously harm or kill him given that his claimed ill-treatments did not attain a minimum level of severity.  In any event, the applicant’s behaviour was also inconsistent with that of someone who was genuinely in fear[12] - [30].

13.  Furthermore, (i) state protection would be available to him because he could seek help from some higher authorities even if the police took no action [31] - [33]; (ii) internal relocation would be viable [34] - [37] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [38] - [42], Persecution risk [43] - [47] or Torture risk [48] - [51].

The Board’s Decision

14.  The applicant appealed the Director’s Decision to the Board.  On 13 November 2018, the Board conducted an oral hearing.   

15.  The Board noted the applicant gave inconsistent evidence regarding the key details of various assault incidents and that he even missed out the incident in which he broke his arm.  The Board also found his evidence regarding how he managed to escape through a window while being tied up was too far-fetched [42] - [53].

16.  As to the applicant’s evidence about his participation in BNP activities, the Board found them vague and lacking in detail [55].  He was unable to provide any detailed reasons for supporting or liking BNP apart from his family’s support for it [56].  The applicant’s limited knowledge towards BNP also showed that his involvement in the party was at very low level, so that he would unlikely attract interest from AL [57] - [58].  Furthermore, the Board cast doubts towards the genuineness of the applicant’s fear given his return to Bangladesh after fleeing to India and China as well as his decision to remain in Bangladesh for almost four years until he left for good in April 2015 [59] - [61].

17.  The Board had doubts towards the credibility of the applicant given the significant inconsistencies and discrepancies in his evidence [62].  It did not accept (i) the applicant was of adverse interest to AL; (ii) the happening of the various assault incidents; (iii) his depart to India and China was due to his claimed fear from the AL members; (iv) the receipt of threatening phone calls from AL members and (v) AL members continued seeking for his whereabouts [63].  The Board also rejected the applicant’s claim that he had no contact with his family since he left Bangladesh in 2015 and that he had no friends/relatives to find out his family’s whereabouts [64].  Although they accepted that the applicant might be a BNP supporter, his future risk of harm upon return to Bangladesh was considered remote given his low level participation [65] - [71]. In any event, internal relocation would also be available [72] - [73].

18.  Based on such findings, the Board considered that the applicant would not face a real risk of harm upon return to Bangladesh.  It concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [8] - [24], [76] - [79].

19.  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

20.  The applicant has filed Form 86 dated 24 June 2019 for leave to apply for judicial review of the Board’s Decision.

21.  In his affirmation and a statement attached to Form 86 in support of his application, the applicant set out the grounds, which are summarized below.

(1)  The Board had unlawfully fetter its discretion by refusing his appeal on the grounds that they did not satisfy the requirement.

(2)  The adjudicator acted in a procedurally unfair manner in dealing with his appeal.  The hearing bundle was sent to him shortly before the hearing without interpretation service.  He was confused.  But he was able to answer all questions put to him by the adjudicator.  Also, the Board did not notify him by phone despite he had made the request.  The Board relied on the source of news which is not officially recognized or is simply outdated, resulting its speculation that if is safe for him to return to his country.

(3)  The Board’s Decision is unreasonable or irrational in public law or is the result of procedural error or unfairness. The Board made its decisions without going to his country to see the situation there.

(4)  The Board failed to meet the greater care and duty owed to a self-represented claimant.

DISCUSSION

22.  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).

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

24.  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.”

25.  The Board had a rather comprehensive review of the applicant’s evidence at the hearing.  For the reasons above, the Board rejected his evidence in support of his claim.

26.  I shall consider the applicant’s grounds for the assessment of the Board’s Decision.

27.  Grounds (1), (3) and (4) are his bare assertions or his opinions without any evidence in support.  The Board was entitled to rely on the country of origin information without going to his country physically for the assessment of his evidence.  As to Ground (2), the applicant did not raise the issues of not having enough time or his inability of understanding the documents to the Board.  Nor did ask for an adjournment for more time to prepare for his appeal. He admitted that he was able to answer the questions put to him by the adjudicator.  His comment on the reliance by the Board on the news not recognized is only his bare assertion without any evidence in support.

28.  I find that the applicant has failed to raise any valid reasons to challenge the Board’s Decision.

29.  In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

30.  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