KIRTANIA KOMAL CHANDRA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1980/2019

[2024] HKCFI 2327

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1980 OF 2019

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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 26 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.  He appeared before the Court on 26 August 2024.

The applicant

3.  The applicant, aged 38, is a national of Bangladesh.  He entered Hong Kong illegally on 20 February 2016 and he surrendered to the Immigration Department on 24 February 2016.  The applicant made a non-refoulement claim on 15 September 2016.  The claim was made on the basis that, if refouled, he would be harmed or even killed by the president of Awami League in his locality (“the AL president”) because of his political affiliation with Bangladesh Nationalist Party (“BNP”) and his father’s refusal to sell a land to him.

4.  According to the applicant, he joined BNP in 2014.  On 10 January 2015, he was elected as the promotional secretary in his locality.  Meanwhile, the applicant’s father owned a piece of land (“the land”), which was of interest to the AL president.

5.  The applicant was assaulted for the first time on 2 February 2015 when he attended a procession organized by BNP.  He was taken to a hospital for treatment of his injury and was subsequently arrested for taking part in unlawful activities.  On 3 February 2015, the applicant was granted bail.

6.  On 5 March 2015, the AL president together with some AL members came to the applicant’s home, threatening him to stop his involvement in BNP and pressed his father to sell the land.  Upon their refusal, the AL members attacked them and vandalized their house.  The applicant and his father reported the case to the police the next day, but they refused to accept their case by reason that the AL president was very powerful.

7.  On 8 March 2015, the applicant was attacked again by AL members for his report to the police against the AL president.  On 26 April 2015, the AL president went to the applicant’s home again with some AL members.  He threatened the applicant’s father to transfer the land to him by pointing a pistol at the applicant’s forehead. Eventually, the AL president left after vandalising the applicant’s home and no document was signed.  Thereafter, the applicant’s father relocated elsewhere.

8.  On 7 May 2015, the applicant came across the AL president at a market.  Upon the applicant’s failure to disclose the whereabouts of his father, the AL president and around 15-20 AL members assaulted him.

9.  The applicant could no longer bear the mistreatment by the AL president.  He intended to flee to Myanmar, but was not granted permission to enter.  He then stayed at his uncle’s home for around three months until August 2015, when he fled to China.  He worked in a factory at Guangzhou for around six months and eventually sneaked into Hong Kong on 20 February 2016.

10.  The applicant maintained contact with his mother.  He was informed that the AL president was still after him and his father and had threatened to kill them.  The applicant was of the view that he could not seek protection from the police because they were under the influence of AL.  The applicant considered internal relocation not viable as well because he feared to be located by AL through their extensive network.

11.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 31 October 2018 (“the Director’s Decision”).

The Director’s Decision

12.  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”).

13.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that (i) the low intensity of past ill-treatment by the AL president indicated a small future risk of harm upon his return to Bangladesh [12]; (ii) the behaviour of the AL president and other AL members showed that they had no real intention to seriously harm or kill the applicant, particularly given his participation in BNP was limited to grass-root level [14]; (iii) state protection would be available [15]-[18]; (iv) internal relocation would be viable [13], [19]-[23] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [24]-[28], Persecution risk [29]-[34] or Torture risk [35]-[37].

The Board’s Decision

14.  The applicant appealed the Director’s Decision to the Board.  On 7 May 2019, the Board conducted an oral hearing.   

15.  The Board found that the applicant was not a witness of truth and had fabricated his claims [95].  The applicant was unable to recall any of the relevant dates about the incidents of harm [96]-[97].  The answers he gave during the interview contradicted with his previous evidence and he even decided to stop answering questions subsequently [98]-[102].  In any event, the Board found the target of the AL president was the applicant’s father because it was him that had the legal ownership of the land, so that it made little sense that the applicant wished to leave Bangladesh, rather than to join his father or seek to hide elsewhere within the country [103]-[104].  The applicant’s involvement in BNP was also questionable given that he was vague as to when and why he joined BNP and was unable to describe the flag of BNP [105]-[106]. 

16.  Given the gaps, inconsistencies and other problems with the evidence, the Board rejected the applicant’s claim in its entirety [108].  The Board found the applicant was never involved in politics and had never participated in any BNP activities.  The Board was also not convinced that the applicant had been charged with any criminal offences [109]-[110].  The Board further found that neither the applicant nor his father were ever threatened to transfer the land to an AL president, so that there was no reason that they had to flee for their safety [111]-[114].

17.  The Board was satisfied that there was no real risk that the applicant would face any of the proscribed forms of harm upon return to Bangladesh [115].  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, Torture risk or BOR 2 and BOR 3 risk [2]-[20], [116]-[119].

18.  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

19.  The applicant has filed Form 86 dated 15 July 2019 for leave to apply for judicial review of the Board’s Decision.

20.  In his affidavit in support of his application, the applicant said that the Director’s investigation is improper and the Director’s Decision and the Board’s Decision are incorrect.

DISCUSSION

21.  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).

22.  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 he understood the Board’s Decision.  He simply wants the Court to review the Board’s Decision.

23.  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.”

24.  The Board, for the reasons given above, found that the applicant’s facts were fabricated.  From the Board’s Decision, the adjudicator had asked him many questions and he had given chance to the applicant to answer the questions.  He was entitled to form his own views about the applicant’s evidence. 

25.  Those grounds in paragraph 20 are not valid to challenge the Board’s Decision as it is his bare assertion or his opinion without any evidence in support.  There is no valid ground from the applicant to challenge the Board’s Decision.

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

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

DISPOSITION

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