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

HCAL 1904/2019

[2024] HKCFI 2401

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1904 OF 2019

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BETWEEN

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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 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 14 August 2024.

The applicant

3.  The applicant, aged 37, is a national of Bangladesh. He entered Hong Kong illegally on 15 June 2009 and was arrested by the police on the same day. The applicant made a torture claim on 18 June 2009. He was arrested by the police on 27 June 2012 for taking employment while being a person that landed in Hong Kong unlawfully and was sentenced to imprisonment of 14 months. The applicant’s torture claim was rejected on 23 July 2013 and his subsequent appeal was also dismissed on 17 March 2014. The applicant lodged a further non-refoulement claim on all applicable grounds other than Torture risk[1] on 25 July 2013. The claim was made on the basis that, if refouled, he would be harmed or even killed by someone called Golam Mustafa (“Golam”) and his fellow Awami League (“AL”) supporters because he had fought against them for extorting money from Bangladesh Nationalist Party (“BNP”) supporters.

4.  According to the applicant, he became a BNP supporter under the influence of his father. On 29 December 2008, AL became the ruling party in Bangladesh. In January 2009, the applicant and his brother (“Kader”) had a fight with AL supporters as they started extorting money from BNP supporters. On one occasion, they even tried extorting money from the applicant’s father by accusing him of fund misappropriation (“money extortion incident”). The applicant’s father denied the accusation and went to seek assistance from Golam together with the applicant and Kader. Yet, Golam did not help, but instead threatened that they would be beaten up if they failed to pay within a week.

5.  A week later, the applicant’s father received a threatening phone call from Golam requesting payment, for which he refused. Thereafter, he arranged a meeting at the BNP office, in which around 80 people including the applicant and Kader attended. During the meeting, around 100 AL members came and attacked them with sticks and choppers, while the applicant and other BNP members fought back using weapons they had prepared in advance (“the fight”). The fight lasted for about an hour, during which the applicant was hit by a chopper and lost consciousness. His head was also bleeding and there were bruises on his hands. The applicant was sent to the hospital and was hospitalized for a week.

6.  Upon the applicant’s discharge from hospital, the matter was reported to the police. Yet, the officer in charge rejected the case as instructed by Golam. In the meantime, Golam had filed cases against the applicant and Kader for injuring five people from AL in the fight. The applicant and Kader were therefore arrested and detained in the police station for a day until their father bailed them out.

7.  The applicant fled to Dhaka soon after his release in February 2009 for three months. In May 2009, he went back to his hometown for a few hours at night to visit his parents. Shortly thereafter, the applicant was advised by his father to leave Bangladesh as the relationship between BNP and AL became tenser. Eventually, the applicant left Bangladesh for China by sea on 1 June 2009 while Kader also left for Dubai. On 15 June 2009, the applicant sneaked into Hong Kong.

8.  Although the applicant’s father remained in Bangladesh, AL members no longer approached him after he lied to them that his money were all taken by the applicant and Kader. Meanwhile, Kader had returned to Bangladesh in 2013 but was in hiding because more cases were filed against him. He left again after around three months.

9.  On 29 July 2017, the applicant’s father encountered some drunk AL members on the street. Upon telling them not to drink and that he had no idea as to the whereabouts of the applicant and Kader, one of the AL members hit the head of the applicant’s father with a wooden stick. He was then sent to hospital where he was hospitalized for 3-4 days. When the applicant’s cousin went to make a report at the police station, he discovered that a false case of administering death threats was filed against another brother of the applicant (“Saddam”). The applicant’s cousin informed Saddam about the false case, who then immediately relocated away to his uncle’s house. After around 1.5 months and upon advice by his father, Saddam left for Malaysia.

10.  The applicant was of the view that he could not seek protection from the police because AL was in power and the police sided with them. He also considered internal relocation not viable because AL could easily locate his whereabouts with their wide network and resources.

11.  Details of the applicant’s story can be found in paragraph 9 of the Director’s Decision dated 29 June 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”); 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”).

13.  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 Golam and other AL supporters indicated that they had no real intention to seriously harm or kill the applicant [16]-[17]; (ii) Golam and the AL supporters were not as powerful and influential as claimed by the applicant, so that the risk of harm was merely his speculation [18]; (iii) the applicant’s behaviours of not taking the first opportunity to leave Bangladesh or to seek protection in China were inconsistent with that of someone genuinely in fear [19]; (iv) state protection would be available [20]-[22]; (v) internal relocation would be viable [23]-[27] and (vi) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [28]-[33] or Persecution risk [34]-[38].

The Board’s Decision

14.  The applicant appealed the Director’s Decision to the Board. On 31 October 2018, the Board conducted an oral hearing.

15.  The Board noted inconsistencies in the applicant’s evidence regarding (i) his father’s role in BNP [93]-[99]; (ii) the circumstances of the money extortion incident [100]-[106]; (iii) the time he stayed in Dhaka [119]-[122] and (iv) whether his father had been tortured after the applicant left Bangladesh [123]-[124].

16.  When the applicant was asked about his personal experience, he failed to mention the report to Golam after the money extortion incident, threat by Golam a week thereafter and the BNP meeting arranged by the applicant’s father whereby 80 BNP members including the applicant and Kader attended [107]-[111]. The applicant also missed out mentioning his and Kader’s detention in the police station for one day [112]-[118] as well as the false case against Saddam [125]-[128].

17.  Furthermore, the date on the documentary evidence provided by the applicant in support of his claim that his father was attacked by a drunk AL member was significantly different to the date the applicant indicated as to when his father was attacked [129]-[135]. The applicant also showed lack of knowledge towards BNP [136]-[140].

18.  Based on such findings, the Board found that the applicant was not a witness of truth and rejected his claim in its entirety [141]. The Board did not accept that the applicant was and would be politically active, so that he would not be at risk to face any of the proscribed forms of harm upon return to Bangladesh [142]-[145].

19.  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 [146]-[169]. 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 8 July 2019 for leave to apply for judicial review of the Board’s Decision.

21.  In his affirmation in support of his application, the applicant has raised the grounds below.

(1) He did not have legal assistance for his appeal and the hearing bundle was given to him shortly before the hearing without provision of translation or interpretation. Therefore, he did not have sufficient time to prepare for his case. He was confused, but he had answered all the questions put to him.

(2) The Board did not notify him of its Decision by phone despite his request.

(3) The Board had relied on the source of news is not officially recognized or it is simply hearsay. It had also relied on outdated cases. All these resulted in it making groundless speculations that it is safe for him to return to his country.

(4) There was no screening for his BOR 2 risk claim.

(5) The Board reached its decisions without going to his country to understanding his real situation in his country.

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. Before me, the applicant said that the Board was wrong because it did not accept his evidence.

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, 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.

26.  For those grounds under paragraph 19, he is not entitled to free legal representation throughout the proceedings[2] and he is not entitled to interpretation all the time[3]. He did not ask the Board to adjourn the hearing to give him more time for his preparation and he said that he had answered all the questions put to him by the Board. The law does not provide that the Board has to notify him of its decisions by phone. There is no evidence to support his allegation that the Board had made speculations that he is safe to return to his country. There had been screening by the Director for BOR 2 risk. It is unnecessary for the adjudicator to go to his country for the situation there as it can rely on the country of origin information. All those grounds fail.

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

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

DISPOSITION

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