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

HCAL 2043/2019

[2024] HKCFI 2835

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2043 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 11 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 October 2024. I shall deal with his application on paper.

The applicant

3.  The applicant, aged 47, is a national of Bangladesh. He entered Hong Kong as a visitor on 14 August 2006 and overstayed since 29 August 2006. On 17 July 2007, the applicant was sentenced to imprisonment of 4 months for a trademark related offence and for breach of condition of stay. The applicant lodged a torture claim on 1 August 2007. The claim was rejected by the Director on 11 December 2013, while the subsequent appeal was also dismissed by the Board on 17 April 2014. On 17 June 2013, the applicant lodged 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 (i) members from Bangladesh Nationalist Party (“BNP”) due to his connection with Awami League (“AL”) and his refusal to pay them extortion money; (ii) fundamentalist groups affiliated with BNP; (iii) the Rapid Action Battalion Unit of the Bangladesh police (“RAB”) as they suspected that he killed the AL leader in his locality (“the AL leader”) and (iv) AL members because he quitted AL.

4.  According to the applicant, he became an active member of AL in 1999. Since then, BNP members started to extort money from him and threaten him to change his political allegiance from AL to BNP. In January 2003, BNP members escalated their action by setting fire to his shoe shop. Although he reported the incidents to the police, they were of no avail. Thereafter, the applicant had also been kidnapped and assaulted by BNP members. In 2006, RAB and AL also went after the applicant respectively because he was suspected of killing the AL leader and that he had quitted AL to join the Jatiya Party. Due to the continuous threats as claimed, the applicant left Bangladesh for Hong Kong in August 2006.

5.  While in Hong Kong, the applicant was informed that BNP members had regularly enquired for his whereabouts and threatened to kill him. Meanwhile, RAB and AL members were also looking for him. Furthermore, a fundamentalist group affiliated with BNP had set fire to his father’s shop.

6.  The applicant was of the view that he could not seek protection from the police because they were corrupted and under the control of BNP. He also considered internal relocation not viable because his enemies could easily identify his whereabouts via their political network.

7.  Details of the applicant’s story can be found in paragraph 9 of the Director’s Decision dated 26 October 2018 (“the Director’s Decision”).

The Director’s Decision

8.  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”).

9.  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 from BNP members indicated a low future risk of harm upon his return to Bangladesh [15]-[18], [20]; (ii) it was the applicant’s mere speculation that the RAB was after him [19]; (iii) the claim about his father’s shop being burnt down by a fundamentalist group affiliated with BNP was based entirely on hearsay [21]; (iv) the misconduct of certain police officers should not be taken to represent the stance of the entire police force in Bangladesh [23]; (v) it was unconvincing that AL would have continuous interest towards the applicant given that he was only a grass-root AL member [24]; (vi) there was no evidence showing the involvement of Bangladeshi officials in the matter [26]; (vii) state protection would be available [27]-[31]; (viii) internal relocation would be viable [32] and (ix) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [33]-[37] or Persecution risk [38]-[43].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 20 June 2019, the Board conducted an oral hearing.

11.  Upon detailed analysis of the applicant’s evidence, the Board did not find him credible given the implausibility on various aspects of his claims [85]-[235]. The Board did not accept that the applicant had been an AL member and hence rejected all his claims about the various adverse action taken by BNP members against him, including the threats, money extortion, burning down of his shoe shop, kidnapping and assault. The Board also rejected his claim that RAB was after him because he was suspected of killing the AL leader [236].

12.  The Board considered that the applicant would not be under any risk or danger upon return to Bangladesh [237]. 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 [29]-[37], [238]-[245]. In any event, state protection and internal relocation would also available to the applicant [38]-[42], [246]-[249].

13.  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

14.  The applicant has filed Form 86 dated 18 July 2019 for leave to apply for judicial review of the Board’s Decision.

15.  In his affirmation in support of his application, the applicant attached a copy of the Board’s Decision without specifying any ground to challenge it.

DISCUSSION

16.  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).

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

18.  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.”

19.  The Board, for the reasons given above, found that the applicant’s evidence was not credible and his claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

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

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

DISPOSITION

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