MD ABDUL MATIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1696/2019

[2024] HKCFI 1871

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1696 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 present 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 31 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 asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, he appeared before the Court on 13 May 2024.

The applicant

3.  The applicant, aged 56, is a national of Bangladesh.  He entered Hong Kong illegally on 5 June 2014 and was arrested by the police on the same day.  The applicant made a non-refoulement claim on 8 June 2014.  The claim was made on the basis that, if refouled, he would be harmed or killed by his four cousins (“the cousins”), who were affiliated with Awami League (“AL”) because he was a member of the Bangladesh Nationalist Party (“BNP”).  The applicant also feared that he would be arrested by the police because the cousins had filed a false murder case against him.

4.  According to the applicant, he was a BNP supporter since 1980 and had been its unit secretary until his departure to Hong Kong.  Meanwhile, the cousins were AL supporters and they had been persuading the applicant to join AL over the years.  One night in October 2013, the applicant was attacked by the cousins with hockey sticks when he was walking home.  He suffered injuries to his left knee, left shoulder and back as a result.  A passerby helped the applicant to return home, after which he went to a clinic for treatment.  He did not report the assault to the police, as he believed that they worked for AL.  On 10 November 2013, people from BNP and AL encountered each other during processions and a fight broke out.  Although the applicant ran away to his friend’s place and did not participate in the fight, he was framed up by the cousins for the death of one of the AL people and a case was filed against him with the police.

5.  On the next day, the applicant went to stay with another friend.  He learnt from his brother that because of the death of the AL member/supporter, the cousins threatened to kill him while the police wanted to arrest him.  Out of fear, the applicant left Bangladesh on 20 May 2014 and eventually sneaked into Hong Kong on 5 June 2014.

6.  The applicant maintained contact with his family while in Hong Kong.  He was informed that the cousins and the police were still after him.  The applicant was of the view that he could not seek protection from the police because AL was the ruling party and had strong influence over the police.  He also considered internal relocation not viable because AL had a strong network all over Bangladesh, so that he would be found.  

7.  Details of the applicant’s story can be found in paragraph 12 of the Director’s Decision dated 12 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 torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.     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”);

c.     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

d.     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 was of the view that the past behaviour of the cousins indicated they had no real intention to seriously harm or kill him.  Regarding the framed murder case, it was based merely on hearsay and there was no indication that he would not receive a fair trial and due process according to the country of origin information (“COI”) [18].

10.  In any event, the Director found that (i) state protection would be available to him [19]; (ii) internal relocation would be viable [20] - [21]; (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [22] - [28], Persecution risk [29] - [33] or Torture risk [34] - [35] and (iv) the action by the cousins originated from their personal grudges with the applicant, which had nothing to do with the Bangladeshi government [36] - [37].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board.  On 18 April 2019, the Board conducted an oral hearing.   

12.  The Board found there was no reliable evidence showing that the applicant had been a BNP supporter since 1980 or that he worked as a unit secretary until his departure to Hong Kong [62].  In any event, the applicant was at most a grass-root level BNP supporter, which unlikely would attract attention from AL [63], as evidenced from the fact that the claimed assault from the cousins happened in 2013, i.e. more than 20 years since he became a BNP supporter [64] - [65].

13.  Regarding the threat from the cousins, the Board accepted that the applicant was assaulted by them once [67].  Yet, the assault was minor in nature, so that there was no reasonable ground to believe that he would face serious harm if return to Bangladesh [68].  The Board also accepted that a fight broke out between BNP and AL and that the applicant fled the scene to his friend’s place [69] - [70].  Since then, the applicant remained untouched for 6 months until he left Bangladesh in May 2014 [71] - [73].  Given that the applicant only suffered minor injuries from a single assault, the Board was of the view that the nature and low intensity of past ill-treatment on him indicated a small future risk of harm upon return [74].

14.  As for the false murder case, the Board considered it unreliable and of low credence [78].  Even if it was true, COI indicated that the applicant would not be deprived of the right to a fair trial and due process [79].

15.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk [86] - [96], [123], BOR 2 and BOR 3 risk [97] - [108] [124] - [125] or Torture risk [109] - [119], [126].  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

16.  The applicant has filed Form 86 dated 20 June 2019 for leave to apply for judicial review of the Board’s Decision.

17.  In his affirmation in support of his application, the applicant said he was not given a translated copy of the Board’s Decision.  He further said that he was only given the hearing bundle shortly before the hearing and he did not understand the contents, which are in English.  Nor was he able to obtain assistance from his friend.  He said that the interpreter at the hearing did not understand him.

DISCUSSION

18.  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).

19.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant confirmed that he understood the Board’s Decision; that there was an interpreter and he was free to express himself before the Board.  He further said that he did not say that the Board was wrong, but he wanted the Court to review his case.

20.  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.”

21.  For the reasons given above, the Board refused to accept the facts in support of the applicant’s claim.

22.  From the Board’s Decision, the applicant did not raise his complaints that he did not understand the hearing bundle or the interpreter did not understand him.  His complaints in his affirmation are inconsistent with what he said before me.

23.  The applicant is unable to raise any valid ground to challenge the Board’s Decision.

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

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

CONCLUSION

26.  I refuse to grant leave to 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