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HCAL 2028/2019
[2024] HKCFI 2834
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 2028 OF 2019
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BETWEEN
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Das Kamal Kisna |
Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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| Before: |
Deputy High Court Judge K.W. Lung in Court |
| Date of Hearing: |
9 October 2024 |
| Date of Judgment: |
5 November 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 26 July 2018 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 9 October 2024.
3. The applicant was the same applicant in HCAL 1506 of 2018, in which he applied for leave to apply for judicial review of the Board’s Decision. He then applied to withdraw his application. The court approved his application for withdrawal without dismissing his application. He now applies for reinstatement of his application. This Court has determined in the case of Re Muhammad Jamil [2024] HKCFI 1647, that the court retains its jurisdiction over the withdrawn action under Order 21 rule 3(1)[1]. Since the merits of the applicant’s claim have not been determined, this Court granted leave for the applicant to reinstate his application for leave for judicial review of the Board’s Decision.
4. 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
5. The applicant, aged 47, is a national of Bangladesh. He entered Hong Kong illegally on 27 October 2015 and was arrested by the police on the same day. The applicant made a non-refoulement claim on 6 November 2015. The claim was made on the basis that, if refouled, he would be harmed or even killed by members of Awami League (“AL”) because he was a member of the Bangladesh Nationalist Party (“BNP”). He also feared harm from Muslims because he was a Hindu.
6. According to the applicant, he became a BNP member since mid-2010. His problem began in April 2015 after the BNP national leader called for a blockade against AL all over the country. He claimed to have escaped from two attempted attacks by AL members in May 2015, after which he relocated to his friend’s home. In July 2015, he went back to his hometown for two days to visit his mother and then left for Dhaka to stay with his uncle. Meanwhile, Hindu temples in Bangladesh were damaged by Muslims and that his Hindu cousin had left the country after being threatened by Muslims. Worried about his safety, the applicant left Bangladesh for China on 10 October 2015. Eventually, he sneaked into Hong Kong on 27 October 2015.
7. While in Hong Kong, the applicant was informed by his mother that AL members and the Muslims continued to attack BNP members and the Hindus. The applicant was of the view that he could not seek protection from the police because they only safeguard the interest of the ruling AL. The applicant also considered internal relocation not viable because he worried that his enemies could find him utilising their network and that he lacked the necessary financial means for relocation.
8. Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 22 September 2017 (“the Director’s Decision”).
The Director’s Decisions
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. The Director found that (i) given the applicant’s grass-root participation in BNP and his absence from Bangladeshfrom November 2011 to April 2015, it was unlikely that he would be specifically targeted by AL members [16]; (ii) it was his mere speculation that he would be attacked by Muslims [17]; (iii) his return to his hometown indicated that the risk of harm was not as imminent as he claimed [18]; (iv) the applicant’s dispute with AL and the Muslims were private in nature and there was no evidence showing that they had the means to locate him anywhere within Bangladesh [20]; (v) state protection would be available [21]-[26]; (vi) internal relocation would be viable [27]-[28] and (vii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [29]-[34], Persecution risk [35]-[40] or Torture risk [41]-[44].
The Board’s Decision
11. The applicant appealed the Director’s Decision to the Board. On 14 May 2018, and the Board conducted an oral hearing.
12. Having considered the applicant’s evidence, the Board was not satisfied that his claims were truthful [82]. First and foremost, he was inconsistent about the degree of his involvement in BNP [83]-[86] and the reasons for joining BNP [94]-[95]. He was also unable to describe the BNP flag [87], was unaware of its membership fee requirement [88] and could not name the BNP leader [98]. Furthermore, there were inconsistencies regarding the circumstances of the two attempted attacks [89]-[92], [102].
13. Due to such inconsistencies in his evidence and the lack of documentary evidence, the Board did not find the applicant to be a witness of truth. It was not accepted that AL members had attempted to attack him twice [93], [102]. The Board also rejected that he attracted adverse attention from AL because of his active involvement in BNP or that he was threatened because he was a Hindu [99]-[100], [109], [111]-[113]. In any event, internal relocation would be available for the applicant according to the country of origin information [114]-[116].
14. 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 [120]-[142]. 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 16 July 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 reason 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 did not raised any ground to challenge the Board’s Decision.
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 evidence was incredible and his 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.
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(K.W. Lung)
Deputy High Court Judge
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The applicant appeared in person.
[1] “3.Discontinuance of action, etc., with leave (O. 21, r. 3)
(1) Except as provided by rule 2, a party may not discontinue an action (whether begun by writ or otherwise) or counter-claim, or withdraw any particular claim made by him therein, without the leave of the Court, and the Court hearing an application for the grant of such leave may order the action or counterclaim to be discontinued, or any particular claim made therein to be struck out, as against any or all of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just.”
The provision of “on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just” provides power for the court to deal with the withdrawn action, especially with regard to the conditions imposed.
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