KAMAL HOSSAIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1983/2019

[2024] HKCFI 2739

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1983 OF 2019

________________________

________________________

________________________

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 19 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 asked for a hearing. However, he was absent at the hearing on 25 September 2024. I shall deal with his application on paper.

The applicant

3.  The applicant, aged 43, is a national of Bangladesh. He entered Hong Kong illegally on 20 August 2007 and was arrested by the police on the same day. The applicant made a torture claim on 7 September 2007, which was rejected on 26 November 2013. His subsequent appeal was also dismissed on 16 April 2014. The applicant lodged a further non-refoulement claim on all applicable grounds other than Torture risk[1] on 2 December 2013. The claim was made on the basis that, if refouled, he would be harmed or even killed by Bangladesh Nationalist Party (“BNP”)  gangsters who extorted money from him.

4.  According to the applicant, he was a low profile Awani League (“AL”)  supporter. In 1998, he started to assist his father in running the grocery store. Between June 2001 and May 2007, some BNP gangsters came to the store regularly to extort money. By May 2007, the applicant relocated away from his hometown because he could no longer afford paying the extortion money. Later on, upon learning that his father’s employee (“the employee”)  was assaulted by the BNP gangsters due to his failure to pay extortion money, the applicant left Bangladesh for China and then eventually sneaked into Hong Kong from Shenzhen on 20 August 2007.

5.  The applicant feared that the BNP gangsters would perceive him to be rich upon return and continue extorting money from him. He also worried that he would be forced to get involved in politics because of the upcoming general election.

6.  The applicant was of the view that he could not seek protection from the police because they were corrupt and he had no money to bribe them. He also considered internal relocation not viable and feared to be killed by the BNP gangsters. 

7.  Details of the applicant’s story can be found in paragraph 9 of the Director’s Decision dated 14 September 2018 (“the Director’s Decision”).

The Director’s Decisions

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

a.  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”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that (i)  the absence or low frequency and intensity of past ill-treatment from the BNP gangsters indicated the risk of harm was not as imminent as he claimed [15], [18]; (ii)  given the applicant’s low-tier involvement in AL, the risk that he would be dragged into politics was too far-fetched [16], [19]; (iii)  there was no evidence showing that the BNP gangsters had the means to locate the applicant anywhere within Bangladesh [20]; (iv)  it was his mere speculation that he would be perceived as rich upon return and be robbed [21]; (v)  state protection would be available [22]-[23]; (vi)  internal relocation would be viable [24]-[25] and (vii)  the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [26]-[31] or Persecution risk [32]-[37].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board.  On 8 April 2019, the Board conducted an oral hearing.

11.  The Board did not accept the applicant’s claim that BNP gangsters had extorted money from him and his family and that the applicant had to flee his country to save his life [47]. The Board noted that AL had become the ruling party in Bangladesh, so that the applicant’s feared risk of harm from BNP gangsters became fanciful [48]-[50]. In any event, the Board also found various aspects of the applicant’s evidence implausible including (i)  the sudden escalation of violence by BNP gangsters to assault the employee; (ii)  his out of proportion decision to leave Bangladesh considering the threat posed against him and (iii)  he was the only one among his family that was targeted by the BNP gangsters [52]-[55].

12.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk or Persecution risk [59]-[77]. 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 15 July 2019 for leave to apply for judicial review of the Board’s Decision.

14.  In his affirmation in support of his application, the applicant said the hearing bundle was sent to him a few days before the Board’s hearing; the adjudicator had never been to his country to understand the real situation; and the Board simply adopt the Director’s Decision.

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.

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 Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. As to the grounds under paragraph 14, there was no complaint from him to the Board that he did not have enough time to prepare for his appeal. It is not necessary for the adjudicator to go to his country to understand the situation there because the adjudicator can rely on the country of origin information, which she had done.  The Board was entitled to adopt the evidence and the views of the Director under the law. All of the grounds fail.

19.  There is no valid ground from the applicant to challenge the Board’s Decision.

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

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

DISPOSITION

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