DAS SRE SUJIAT CHANDRO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2375/2019

[2025] HKCFI 115

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2375 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 19 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 37, is a national of Bangladesh. He entered Hong Kong illegally on 30 October 2014 and was arrested by the police on the same day. The applicant made a non-refoulement claim on 1 November 2014. The claim was made on the basis that, if refouled, he would be harmed or even killed by members of Awami League (“AL”) and the Muslims because of his participation in Bangladesh Nationalist Party (“BNP”) and for being a Hindu. He also feared to be arrested by the police because he was accused of involving in a murder case.

4.  According to the applicant, he was forced to join BNP in 2010 after being assaulted twice by its members. In around 2013, the applicant and his fellow BNP members were assaulted by AL members when they were performing electioneering work. Shortly after the election, the applicant was abducted by AL members, but was released upon intervention by his friend (“the adduction”). Subsequently, the applicant relocated to Dhaka to stay with his sister until February/March 2014, after which he returned to his hometown to assist BNP in preparation for another election.

5.  In around September 2014, while the applicant was attending a meeting with around 50 BNP members, more than 100 AL members came to the scene and attacked them. The applicant managed to escape and fled to his friend’s home. To avoid further trouble, he decided to stop participating in BNP activities. Yet, in late September 2014, the applicant was informed that a murder case was filed against him after an AL member died in a fight with some BNP members. To avoid being arrested, the applicant relocated between places of different neighbours, during which the police had gone to his home looking for him. Upon advice from his family, the applicant left Bangladesh on 23 October 2014 and he eventually sneaked into Hong Kong from Mainland China on 30 October 2014. When the applicant last contacted his family in late October 2014, he was informed that both the police and AL members were still after him and had threatened his family.

6.  Meanwhile, the applicant also claimed that he faced constant suppression from Muslims as a Hindus. He cited an incident that happened in September 2014, when some Muslims came to cause chaos and stole jewelleries during a Hindu festival.

7.  The applicant was of the view that he could not seek protection from the police because AL was the ruling party while he was a BNP member. He considered internal relocation not viable as well because he lacked the necessary financial capability and that the police and AL could utilise their networks to locate him. As for the religious conflict, he feared that the discrimination against Hindus might deteriorate because the Bangladeshi government was constituted of Muslims.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 6 February 2015 (“the Director’s 1^st Decision”).

The Director’s Decisions

9.  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”).

10.  By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim on BOR 3 risk, Persecution risk, Torture risk. The Director found that (i) the low intensity and frequency of past ill-treatment from AL members and the Muslims indicated a small future risk of harm upon his return to Bangladesh [13]-[14]; (ii) the applicant would unlikely be of adverse interest to the entire AL given his grass-root involvement in BNP [14]; (iii) state protection would be available [15] and (iv) internal relocation would be viable [16]-[19].

11.  In the Notice of Further Decision dated 9 January 2017, the Director also rejected the applicant’s claim on BOR 2 risk (“the Director’s 2^nd Decision”) for the reason that there was no evidence to show that his right to life under BOR 2 would be violated upon his return.

The Board’s Decision

12.  The applicant appealed the Director’s 1^st and 2^nd Decisions to the Board. On 23 January 2017, the Board conducted an oral hearing.

13.  The Board found the applicant’s account in relation to the 1^st assault by the BNP members and the adduction not credible because the described circumstances of the former was inconsistent while the latter was vague and illogical. As to the 2^nd assault by the AL members, the Board noted that the applicant did not suffer any serious injury. He also gave confusing evidence as to whether an AL member was killed during the 2^nd assault or in a subsequent incident. In any event, leaving aside credibility, there was no evidence showing that the applicant was specifically targeted during the 1^st and 2^nd assault incident. The fact that no harm was inflicted to the applicant during the adduction also indicated that the AL members had no intention to seriously harm or kill him [29]-[37].

14.  Regarding the risk of harm as Hindus, the Board noted that the applicant and his family had never suffered any physical harm and that the general level of state and societal discrimination against Hindus was low based on the country of origin information (“COI”) available [38]. In relation to the applicant’s claimed fear of arrest by the police, the Board considered him as a fugitive from justice and there was no indication from the COI that he would be denied a fair trial anyway [38]-[39]. Furthermore, internal relocation and state protection would also be available [40]-[42].

15.  Based on such findings, the Board rejected the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk [19]-[26], [43]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s 1^st and 2^nd Decisions.

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

16.  The applicant has filed Form 86 dated 16 August 2019 for leave to apply for judicial review of the Board’s Decision.

17.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

18.  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).

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

20.  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.”

21.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

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

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

DISPOSITION

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