SUMON KHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1505/2019

[2024] HKCFI 1374

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1505 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 15 May 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 did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

The applicant

3.  The applicant, aged 33, is a national of Bangladesh. He entered Hong Kong illegally from Mainland China on 7 June 2012 and was arrested by the police on 12 June 2012. The applicant made a torture claim on 14 June 2012, which was rejected on 12 November 2012.  The applicant was re-arrested by the police on 7 August 2014.  On 10 October 2014, he made a further non-refoulement claim on all applicable grounds other than Torture risk^[1].  The non-refoulement claim was made on the basis that, if refouled, he would be harmed or even killed by the members of the Bangladesh Nationalist Party (“BNP”) in his locality.

4.  According to the applicant, he joined the Awani League (“AL”) as an ordinary member in 2008. In 2011, the applicant was assigned to solicit votes for the party in the chairman election. Subsequently, three BNP members threatened the applicant not to campaign for AL and also forbade his father for doing the same. Later on, the applicant was assaulted by BNP members when he tried to prevent them from buying votes. The applicant was seriously injured and was hospitalised for 15 days as a result. He only reported the incident to senior AL members, but not the police.

5.  Around two months later, the applicant and his friend were confronted by five masked men.  He believed that the masked men were hired by BNP. The applicant and his friend were assaulted, tied up and then dragged into a van. The van destined at a wheat field, after which the applicant was assaulted again while his friend was taken away. Around 30 minutes later, a police patrol came and the masked men ran away to avoid arrest.  The police helped the applicant to untie. His friend however, was later found dead with his body parts scattered in different parts of the said wheat field.

6.  The applicant made a report of the kidnapping to the police. Thereafter, a senior AL member suggested the applicant’s father send him overseas for his safety.  While arrangements were being made for the applicant’s departure, he relocated to different places within the country.  When he was about to depart Bangladesh, he was stopped by an immigration officer, who told him that he was not allowed to leave without any reason given.  The applicant was subsequently released upon bribing him.  The applicant then left for China and subsequently sneaked into Hong Kong.

7.  In around 2017, another friend informed him that he was still being sought by BNP members given his past involvement in AL and his report to the police about the kidnapping incident.  The applicant’s father had to hide himself from BNP members as he maintained his tie with AL, while his mother warned him not to go back to Bangladesh as she was also beaten up by BNP members in around 2012.

8.  The applicant was of the view that he could not seek help from the police as he had no money to bribe them. He also considered internal relocation not viable because BNP affiliates could still locate him. He also did not have resources to settle elsewhere and could not secure any job in other cities.

9.  Details of the applicant’s story can be found in paragraph 9 of the Director’s Decision dated 18 July 2018 (“the Director’s Decision”).

The Director’s Decision

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

(1)  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”);

(2)  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

(3)  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”).

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director was of the view that as the applicant was only an ordinary AL member, he would not attract adverse interest from the whole BNP party across the country in pursuing him. In fact, the behaviour of the BNP members indicated they had no real intention to severely harm or kill him. The applicant’s behaviour was also inconsistent with that of a person who was in real and imminent risk [17]-[19].

12.  In any event, (i) state protection will be available to him upon his return [20]-[23]; (ii) internal relocation is viable [24]-[25] and (iii) 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

13.  The applicant appealed the Director’s Decision to the Board.  On 21 January 2019, the Board conducted an oral hearing.    

14.  At the commencement of the hearing, the applicant made two new claims. Firstly, he claimed to have received two death threats via Facebook Messenger. Secondly, his family house was vandalized and destroyed while threats were also made against his parents after the 2018 election.

15.  Having considered the applicant’s evidence, the Board was of the view that the applicant was not a credible witness. His evidence were inconsistent and his explanation were non-persuasive. Apart from the nationality of the applicant, the Board basically rejected every aspect of his claim, including the two new claims made at the commencement of the hearing [33]-[45].

16.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk [17]-[19], [46]-[48] or BOR 2 and BOR 3 risk [20]-[24], [49]-[52]. 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

17.  The applicant has filed Form 86 dated 3 June 2019 for leave to apply for judicial review of the Board’s Decision.

18.  The applicant filed an affirmation in support of his application, saying that the Board had failed to consider all the matters raised in his claim and it failed to give adequate reason for its decisions.

DISCUSSION

19.  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).

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

21.  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.”

22.  In the Board’s Decision, the Board had set out the reasons for not accepting the applicant’s evidence on the alleged facts in support of his case. See paragraphs 33-42.  The adjudicator concluded at paragraph 43:

“I have considered the claims of the Appellant individually and cumulatively, as well considering the personal circumstances of the Appellant. On the credible evidence before me, I do not consider the Appellant faces a real risk of Proscribed Harm from supporters of the BNP and or supporters of Mr N if the Appellant is refouled to the Risk State.”

23.  The applicant has raised no valid reason for this Court to interfere with the Board’s Decision.

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

CONCLUSION

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

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1