SHAIKH MOHAMMAD AMERUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1889/2019

[2024] HKCFI 2473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1889 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 21 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. However, he was absent at the hearing on 14 August 2024. I shall deal with his application on paper.

The applicant

3.  The applicant, aged 41, is a national of Bangladesh. He entered Hong Kong illegally on 26 November 2014 and was arrested by the police on the same day. The applicant made a non-refoulement claim on 29 November 2014. The claim was made on the basis that, if refouled, he would be harmed or even killed by a Mr Mukti Biswas (“Mukti”) and his Awami League (“AL”) associates because he refused to join AL.

4.  According to the applicant, he joined Bangladesh Nationalist Party (“BNP”) as an ordinary member in 2000. In 2008, after AL came to power, Mukti and his associates went to his grocery store requesting him to quit BNP and join AL. A week after the applicant’s refusal, 10-20 AL members started going to his grocery store to extort money from him. They came every four to seven days for about two years. Besides money extortion, they also took goods from his grocery store.

5.  The applicant could not tolerate the situation anymore after two years. He went to see Mukti in mid-2014, who refused to assist. Five days later, 7-8 AL members went to his grocery store and asked why he made a complaint to Mukti. The applicant was then punched on his head and his face was cut by a knife resulting in a long open wound. Three of his teeth were also knocked out. Eventually the applicant lost consciousness and was taken to the hospital by the neighbouring shopkeeper as well as his family.

6.  The applicant was discharged from the hospital after 14 days. He did not manage to report the matter to the police because he was intercepted by AL members. The applicant recovered after three months and returned to his grocery store. After 5-7 days, AL members came to threatened him again that he would be killed if he still refused to join them. The applicant was scared and relocated to stay with his sister for two months before going back home to continue managing his grocery store. Two days after his return, 12 AL members came giving him a final warning that he would be killed if he still refused to join AL.

7.  The applicant discussed the matter with his uncle, who advised him to relocate to Dhaka pending his arrangement for him to go abroad. One night before leaving Bangladesh, he encountered an AL member (“the AL member”) near his home. The applicant hit the AL member with a stick and broke his right leg. He was unsure whether the AL member had lodged a complaint against him.

8.  The applicant stayed in Dhaka for a month and he left Bangladesh for China in November 2014. He stayed in Guangzhou for 13 days. He then went to Shenzhen where he took a speedboat and sneaked into Hong Kong on 26 November 2014.

9.  The applicant maintained contact with his family, who told him that AL members were still after him and had threatened to kill him when he returned home. The applicant was of the view that he could not seek protection from the police because they were terrorists and would not follow the law. The applicant considered internal relocation not viable as well because AL members could utilise their strong network to find him wherever he went.

10.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 20 August 2018 (“the Director’s Decision”).

The Director’s Decision

11.  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”).

12.  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 received by the applicant indicated a small future risk of harm upon his return to Bangladesh [11.1]-[11.2]; (ii) given the applicant’s grass-root participation in BNP and his long absence from Bangladesh since November 2014, any adverse interest from AL should have diminished [11.3]; (iii) the applicant’s repeated return to his grocery store was inconsistent with the behaviour of someone genuinely in fear, but rather showed that his fear was not as imminent as he claimed [11.4]; (iv) state protection would be available [11.5]-[16]; (v) internal relocation would be viable [17] and (vi) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [18]-[22], Persecution risk [23]-[28] or Torture risk [29]-[31].

The Board’s Decision

13.  The applicant appealed the Director’s Decision to the Board. On 24 December 2018, the Board conducted an oral hearing.

14.  During the hearing, the applicant produced medical documents to support his claim, from which the Board noted that injury was stated to be caused by a road traffic accident. The applicant claimed that the doctors were bribed by AL and hence wrote road traffic accident as the cause of the injury [56].

15.  The Board found the applicant’s evidence unreliable. The medical documents produced at the hearing were related to a road traffic accident in April 2014 and the injuries described therein were not the same injuries the applicant claimed to have suffered from. In fact, the date of the medical report did not even correspond to the date of the claimed assault. Meanwhile, the applicant also gave contradictory evidence as to whether he had ever made a report to the police whilst his claimed attack on the AL member was unconvincing. Furthermore, the Board found the applicant’s claimed work history and the dates of the various claimed incidents questionable. In any event, the applicant’s claim about the police’s bias against him was merely his speculation and that it was only hearsay information from his family that AL members were still after him [61].

16.  The Board did not find the applicant credible given that his claim was based on questionable and unreliable evidence. It was not accepted that the applicant was assaulted and threatened by AL members and that he faced a genuine risk of harm upon return to Bangladesh [65]-[66].

17.  In any event, the claimed ill-treatment failed to reach the requisite level of severity and there was no evidence of involvement by Bangladesh state agent in the matter. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [41]-[53], [67]-[88]. Furthermore, state protection and internal relocation would also be available according to the country of origin information [31]-[40], [62]-[63], [70]-[71].

18.  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

19.  The applicant has filed Form 86 dated 8 July 2019 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

21.  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).

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

23.  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. ”

24.  The Board, for the reasons given above, found that the applicant’s evidence was unacceptable and his claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

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

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

DISPOSITION

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