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

HCAL 2146/2019

[2024] HKCFI 2880

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2146 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 5 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.  He appeared before the Court on 14 October 2024.

The applicant

3.  The applicant, aged 53, is a national of Bangladesh.  He entered Hong Kong with a false identity on 17 March 2007 as a visitor and he overstayed since 25 March 2007.  The applicant was arrested by the police on 8 July 2007.  He made a torture claim, which was rejected on 10 July 2013.  On 17 July 2013, he made a further non-refoulement claim on all applicable grounds other than Torture risk[1].  The claim was made on the basis that, if refouled, he would be harmed or even killed by members of Awami League (“AL”) because he refused to quit the Bangladesh Nationalist Party (“BNP”) and join AL.

4.  According to the applicant, he became a BNP member since high school.  His adverse experience with AL began in the fall of 2001, when AL members extorted money from him.  In the summer of 2006 during parliamentary election, after the applicant refused to join AL, he received a threatening call warning him not to participate in BNP activities.  The next day, there was an explosion in the BNP rally he attended, during which he was also assaulted.  Feared about his safety and worried that a warrant might have be issued against him, the applicant left Bangladesh for Hong Kong with a false identity in March 2007.

5.  While in Hong Kong, the applicant was informed by his family that the police had been looking for him.  The applicant was of the view that he could not seek protection from the authorities because they were corrupt.  He also considered internal relocation not viable because AL had a strong network in Bangladesh.

6.  Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 22 March 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”); 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”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that (i) the low intensity and frequency of past ill-treatment by AL members indicated a low future risk of harm upon his return to Bangladesh [14]; (ii) the conduct of the applicant was inconsistent with that of someone genuinely in fear [15]; (iii) it was the applicant’s mere speculation that he was being pursued by the authorities due to his BNP affiliation [16]; (iv) given the applicant’s grass-root participation in BNP and his long absence from Bangladesh, any adverse interest from AL should have diminished [17]; (v) state protection would be available [18]-[20]; (vi) internal relocation would be viable [21]-[23] and (vii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [24]-[29] or Persecution risk [30]-[33].

The Board’s Decision

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

10.  The Board found the applicant’s claim extremely vague [27].  In any event, his claim was contrary to the country of origin information, which showed that BNP was in power at the material time and there was no national election in 2006 [28].

11.  The Board found the applicant’s claim about being an active BNP member not credible.  His claims that he was targeted by AL, that a warrant was issued against him and that the police were looking for him were all rejected [29], [32]-[33].

12.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk or BOR 2 and BOR 3 risk [35]-[41].  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 26 July 2019 for leave to apply for judicial review of the Board’s Decision.

14.  The applicant has raised the grounds below in support of his application:

(1)  The Board had unlawfully fettered its discretion by refusing his appeal on the ground that he did not satisfy the requirement.

(2)  The adjudicator acted in a procedurally unfair manner in dealing with his appeal.

(3)  The Board’s Decision was irrational in the public law sense, or were a result of procedural errors or unfairness.

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

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 said that the Board was wrong because it did not believe his evidence.

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.  Those grounds under paragraph 14 are his bare assertions without any evidence in support.  They are not valid to challenge the Board’s Decision. Assessment of the evidence is within the Board’s discretion.

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.