UDDIN MOHAMMAD WAZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2393/2019

[2025] HKCFI 238

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2393 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 1 August 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 18 December 2024.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 38, is a national of Bangladesh. He entered Hong Kong illegally on 11 January 2016 and he surrendered to the Immigration Department the following day. The applicant made a non-refoulement claim on 26 July 2016 and 22 August 2016. The claim was made on the basis that, if refouled, he would be harmed or even killed by members of Awami League (“AL”).

5.  According to the applicant, his family were supporters of the Bangladesh Nationalist Party (“BNP”) and he became a BNP member in 2011. Due to his active contribution to the party, he became the BNP general secretary in his locality in March 2014. The applicant claimed that dispute between BNP and AL arose after the general election in January 2014, of which the former organised many rallies against the government led by the latter. As the applicant had organised rallies for BNP in his locality, an arrest warrant was issued against him and the police had been to his home looking for him. The applicant therefore had to relocate between different places including his father-in-law’s and his sister’s homes.

6.  In April 2014, some AL members vandalised the applicant’s shop after he refused to quit BNP and join AL. In January 2015, the applicant was kidnapped and assaulted by AL members. He was released three days later after paying extortion money. Subsequently, around 15-20 AL members attended his home with weapons and threatened him to leave the country. Out of fear, the applicant went to Dhaka and stayed with his cousin until 1 May 2015, after which he went to India. On 18 May 2015, after failing to seek protection in India, he returned to Bangladesh and continued staying at his cousin’s home in Dhaka. Although nothing eventful had happened since then, the applicant still feared about his safety and claimed to suffer mental distress. Eventually, he left Bangladesh on 5 December 2015 and subsequently sneaked into Hong Kong via Mainland China.

7.  The applicant had maintained contact with his family while in Hong Kong. He was informed that AL members were still seeking his whereabouts and that all BNP members had fled his hometown after one of its members was killed by AL. His family however were safe as they were only BNP supporters. The applicant was of the view that he could not seek protection from the police because they would only protect the interests of AL. He also considered internal relocation not viable because AL had networks all over Bangladesh, so that he would be easily located.

8.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 9 November 2017 (“the Director’s Decision”).

The Director’s Decision

9.  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”).

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the absence or low intensity and frequency of past ill-treatment from AL members indicated a small future risk of harm upon his return to Bangladesh [13]-[17]; (ii) the applicant’s behaviour did not suggest that he was suffering from mental distress [18]-[19]; (iii) the action taken by the AL members showed that they had no real intention to seriously harm or kill the applicant [20]; (iv) the conduct of the applicant was inconsistent with that of a person genuinely in fear [21], [23]; (v) there was insufficient evidence indicating that the AL members had the means to locate the applicant anywhere within Bangladesh [22]; (vi) there was lack of evidence showing that the applicant was a prominent figure in BNP [24]; (vii) the applicant’s claimed fear against the police was based merely on hearsay [25]; (viii) state protection would be available [26]-[35] and (ix) internal relocation would be viable [36]-[43].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. On 12 February 2018, the Board conducted an oral hearing.

12.  Upon consideration of the country of origin information, the Board accepted a long-standing enmity existed between AL and BNP, but found that ordinary members/supporters faced no real risk of harm. Given the applicant’s lack of knowledge towards BNP and his ignorance about the relevant political incidents, the Board found that he had very little, if any, association with BNP. In any event, serious doubt was cast on the applicant’s credibility given the significant inconsistencies of his evidence [57]-[71].

13.  Based on such findings, the Board considered that the applicant was not a credible witness [72] and rejected his claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [8]-[22], [74]-[77]. In particular, the Board found:

“61. … I do not accept that the Appellant was subjected to the level of harm or threats as claimed. I have a number of difficulties with the account as given by the Appellant.

62. At the hearing, the Appellant displayed very little knowledge of the party of which he claimed to have been a member and an office bearer. …

66. … the lack of consistency in the accounts provided by the Appellant casts doubt on his credibility.

68. … The matters in relation to which his accounts differed are not inconsequential and he was not able to give a reasonable explanation for those differences. …

71. Based on the serious deficiencies in his evidence and his lack of knowledge of the BNP and what occurred during the 2014 election, I am satisfied that the Appellant in fact had very little, if any, association with the party.

72. Considering all the evidence, I do not find the Appellant to be a credible witness. …”

14.  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

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

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

DISCUSSION

17.  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).

18.  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 he had no comment on the Board’s comments on his evidence.

19.  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.”

20.  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.

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

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

DISPOSITION

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