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HCAL 2050/2019
[2024] HKCFI 2748
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 2050 OF 2019
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BETWEEN
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Shakh Md Rasel |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
________________________
| Before: |
Deputy High Court Judge K.W. Lung in Court |
| Date of Hearing: |
25 September 2024 |
| Date of Judgment: |
21 October 2024 |
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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 12 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. He appeared before the Court on 25 September 2024.
The applicant
3. The applicant, aged 31, is a national of Bangladesh. He entered Hong Kong illegally on 26 May 2015 and was arrested by the police on 27 May 2015. The applicant made a non-refoulement claim on 30 May 2015. The claim was made on the basis that, if refouled, he would be harmed or even killed by members of the Awami League (“AL”) because he refused to join AL.
4. According to the applicant, he became a supporter of the Bangladesh Nationalist Party (“BNP”) in mid-2010. In around late 2010, AL members threatened the applicant once directly and once indirectly through his parents to quit BNP and join AL. In mid-2011, the applicant relocated to his cousin’s home in Dhaka. He returned to his hometown in mid-2014 and resumed participation in BNP activities, including a protest against the unfair election held in January 2014.
5. Around two months later, the applicant was threatened for the third time by AL members to quit BNP and join AL. On that occasion, he also suffered minor injuries from the assault by AL members. In January 2015, the applicant returned to his cousin’s home in Dhaka. Eventually, he left Bangladesh for China on 22 May 2015 and he sneaked into Hong Kong from Shenzhen on 26 May 2015.
6. While in Hong Kong, the applicant maintained contact with his parents and was informed that AL members had stopped looking for him after they learnt that he had left Bangladesh. The applicant was of the view that he could not seek protection from the police because they were controlled by the ruling AL. He also considered internal relocation not viable because he believed that he would be found by AL members upon return.
7. Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 21 January 2019 (“the Director’s Decision”).
The Director’s Decision
8. The Director considered the applicant’s claim in relation to the following risks:
(1) According 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”);
(2) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);
(3) 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
(4) 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 and frequency of past ill-treatment by AL members indicated that they had no real intention to seriously harm or kill the applicant [12]-[13]; (ii) given the applicant’s grass-root participation in BNP and his long absence from Bangladesh, any adverse interest from AL should have dissipated [14]; (iii) there was no evidence showing the involvement of the Bangladeshi authorities in the matter or that the AL members had means to locate the applicant anywhere within Bangladesh [15]; (iv) state protection would be available [16]-[19]; (v) internal relocation would be viable [20]-[24] and (vi) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [25]-[30], Persecution risk [31]-[35] or Torture risk [36]-[39]
The Director’s Decisions
10. The applicant appealed the Director’s Decision to the Board. On 8 April 2019, the Board conducted an oral hearing.
11. The Board found the applicant’s claims about BNP and the harassments by AL members were generally consistent with the country of origin information [37]. The Board was satisfied that the applicant was an ordinary member/supporter of BNP and that he had attended a number of BNP rallies [41]. The account of events given by the applicant, including the claimed threats and minor assaults from AL members were also accepted in general [42]-[45].
12. The Board found the applicant faced a small though nonetheless real risk that he would suffer serious harm from AL. However, he could avoid the claimed risk by internal relocation. 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 [47]-[78].
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 has raised the grounds below.
(1) The hearing bundle was given to him shortly before the hearing. The documents are mostly in English, but there is no translation. He was not legally represented at the appeal hearing. However, he had answered all questions. Yet, the Board did not accept his evidence.
(2) He had requested the Board to notify him of the Board’s Decision by phone, but the Board did not do so.
(3) The Board had relied on the source of news which is not officially recognized or it is simply hearsay. It had also relied on outdated cases. All of these cause the Board to speculate that he is safe to return to his country.
(4) The adjudicator should go to his country to understand the real situation there.
(5) The Board had unlawfully fettered its discretion by refusing his appeal on the grounds that they did not satisfy the requirements.
(6) The Board’s Decision is unreasonable or irrational in the public law sense.
(7) The Board failed to meet the greater care and duty owed to him as a self-represented claimant.
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. Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board was not wrong. Nevertheless, he asked the Court to review the Board’s Decision.
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, having accepted the applicant’s evidence that he may have real risk if he returns to Bangladesh, came to its conclusion that he may avoid the risk by internal relocation.
20. The applicant’s grounds under paragraph 15 do not assist him. He was not entitled to translation all the time[1]. He was also not entitled to free legal representation at all stages of the proceedings[2]. Grounds (3), (5), (6) and (7) are bare assertions without any evidence in support and they are not valid to challenge the Board’s Decision[3]. The Board was not obligated to notify him of the Board’s Decision by phone. The Board can rely on the country of origin information without going to his country to understand the situation there. All of the grounds fail.
21. There is no reason that the Court should interfere with the Board’s finding of the facts and conclusion.
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.
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(K.W. Lung) |
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Deputy High Court Judge |
The applicant appeared in person.
[1] The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 held:
“I8. … …Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.”
[2] The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:
“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”
[3] The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:
“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”
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