ISLAM SHAHID MOHAMMAD SHAHIDUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2047/2019

[2024] HKCFI 2676

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2047 OF 2019

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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 10 July 2019 of the Torture Claims Appeal Board/

2.  The applicant asked for a hearing.  He appeared before the Court on 25 September 2024.

The applicant

3.  The applicant, aged 45, is a national of Bangladesh.  He entered Hong Kong illegally on 26 January 2016 and was arrested by the police on the same day.  The applicant made a non-refoulement claim on 30 January 2016.  The claim was made on the basis that, if refouled, he would be harmed or even killed by the General Secretary of Awami League (“AL”)  in his locality (“the AL General Secretary”)  and other AL members because he had hit the AL General Secretary.

4.  According to the applicant, he owned a confectionary shop.  In around September 2015, a fight broke out between Bangladesh Nationalist Party (“BNP”)  members and AL members in the vicinity of his shop.  The applicant requested the AL General Secretary not to fight as this affected his business.  Following the hostile reaction by the AL General Secretary, the applicant hit him with a bamboo stick.

5.  The applicant immediately fled to Dhaka after the assault, where he stayed with his wife’s uncle.  While in Dhaka, he was informed that AL members had vandalised his shop and his house.  The AL members also demanded the applicant’s whereabouts from his family.  In December 2015, AL members came to the home of his wife’s uncle to look for the applicant while he was away.  Out of fear, the applicant departed Bangladesh for China on 23 January 2016 and eventually sneaked into Hong Kong from Shenzhen on 26 January 2016.

6.  While in Hong Kong, the applicant maintained contact with his family and was told that AL members had threatened to kill him from time to time.  The applicant was of the view that he would not be offered assistance by the police because they sided with the ruling AL.  He also raised concerns about the prison conditions in Bangladesh.  The applicant considered internal relocation not viable as well because AL had an extensive network in Bangladesh, so that he would be located sooner or later.

7.  Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 30 April 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”);

(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”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that (i)  the low intensity of past attack and threats from the AL General Secretary and other AL members indicated that they had no real intention to seriously harm or kill the applicant [15]; (ii)  the risk of being arrested constituted lawful sanctions and there was no indication that a fair trial would not be provided [15];

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board.  On 12 April 2019, the Board conducted an oral hearing. 

11.  The Board found the applicant’s claim about assaulting the AL General Secretary not credible as it was implausible that the matter had neither been reported to the police, nor reported by the media [25]-[26], [29].

12.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [31]-[39].  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

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

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

DISCUSSION

15.  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).

16.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant agreed that the Board was not wrong in its decisions.  However, he asked the Court to review the Board’s Decision.

17.  In Re: Kartini [2019] HKCA 1022, 9 September 2019,

“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.”

18.  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.

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

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

DISPOSITION

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