AL AMIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2017/2019

[2024] HKCFI 2752

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2017 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 14 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. He appeared before the Court on 25 September 2024.

The applicant

3.  The applicant, aged 41, is a national of Bangladesh. He entered Hong Kong illegally in August 2006 and was arrested by the police on 10 June 2007. The applicant lodged a torture claim on 30 June 2007. The claim was rejected by the Director on 7 January 2011, while the subsequent appeal was also dismissed by the Board on 15 July 2011. On 6 April 2013 and 12 April 2013, the applicant lodged a further non-refoulement claim on all applicable grounds other than Torture risk[1]. Meanwhile, the applicant also applied for judicial review against the Board’s Decision on 15 July 2011. His application was successful and the Court made an Order on 8 August 2014 that the torture claim be remitted to the Director for fresh determination.

4.  Upon commencement of the unified screening mechanism, the applicant’s torture claim and his further non-refoulement claim was assessed on all applicable grounds including torture risk. The claim was made on the basis that, if refouled, he would be harmed or even killed by the brothers of his ex-girlfriend, who belonged to Awami League (“AL”). He also feared staff members from the bank, which his mother owed money to (“the bank”).

5.  According to the applicant, he became a supporter for Bangladesh Nationalist Party (“BNP”) at around 10 or 12 years old. He met his ex-girlfriend while at school and later learnt that her brothers were associated with AL. In around 1997, the applicant’s mother took out a loan from the bank to assist him in opening his grocery. One day in around 2006, his ex-girlfriend told him that she was beaten by her family because she was seen talking with the applicant in his shop. Subsequently, the applicant was also informed by his parents that his ex-girlfriend’s brothers had threatened to kill him if he continued dating their sister.

6.  About a month later, the applicant was assaulted by his ex-girlfriend’s brothers while his shop was also looted. As such, the applicant could not continue his business and was unable to make repayment to the bank. Feared of future harm from his ex-girlfriend’s brothers and staff from the bank, the applicant stayed in nearby villages during daytime and would only return home at night to sleep. He was informed that his ex-girlfriend’s brothers were still after him and that staff from the bank had threatened to take legal actions if the loan remain unpaid. Upon advice from his parents, the applicant left Bangladesh for China sometime in 2006. Eventually, he sneaked into Hong Kong from Shenzhen.

7.  While in Hong Kong, the applicant was informed by his mother that his cousin living next door was killed, which the applicant believed was done by his ex-girlfriend’s brothers. His mother also told him that a criminal case was filed against him by his ex-girlfriend’s father. As for the outstanding loan, the applicant claimed that staff from the bank did not take any action apart from giving verbal threats.

8.  The applicant was of the view that he could not seek protection from the police because they were corrupt. He also considered internal relocation not feasible due to his lack of means and the powerful network of AL in Bangladesh.

9.  Details of the applicant’s story can be found in paragraph 23 of the Director’s Decision dated 10 October 2017 (“the Director’s Decision”).

The Director’s Decision

10.  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”).

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) a significant part of the applicant’s evidence was based on hearsay [30], [35]; (ii) the low intensity and frequency of past ill-treatment by his ex-girlfriend’s brothers and staff from the bank indicated that they had no real intention to seriously harm or kill the applicant [31]-[33]; (iii) the matter concerned was a private dispute with no evidence of state involvement [34], [43]; (iv) the applicant’s conduct was inconsistent with that of someone genuinely in fear [36]; (v) state protection would be available [38]-[50]; (vi) internal relocation would be viable [37], [51]-[55]; and (vii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [57]-[61], Persecution risk [67]-[71] or Torture risk [72]-[75].

12.  The Director also held that section 11 of HKBOR precluded the applicant from relying on rights under HKBOR that are not absolute and non-derogable to resist removal [62]-[64].

The Board’s Decision

13.  The applicant appealed the Director’s Decision to the Board. On 14 May 2019, the Board conducted an oral hearing.

14.  During the hearing, the Board found the applicant’s evidence full of inconsistencies and omissions. Given such vague, evasive and unconvincing nature of his evidence, the Board did not find the applicant to be a credible witness and rejected his claims about (i) his relationship with his ex-girlfriend and the threat/assault he received from her family because of such relationship; (ii) his and his family’s affiliation with BNP; (iii) his cousin was killed because of the grudges between him and his ex-girlfriend’s family; (iv) a false case being filed against him; and (v) his mother obtaining a loan for him to startup his grocery business and that he became indebted to the bank subsequently [23]-[196].

15.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, Torture risk or BOR 2 and BOR 3 risk [199]-[210]. The Board also agreed with the Director’s Decision that section 11 of HKBOR precluded the applicant from relying on rights under HKBOR that are not absolute and non-derogable to resist removal [217]-[219].

16.  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

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

18.  In his affirmation in support of his application, the applicant has raised the ground below.

(1) The hearing bundle was given to him shortly before the Board hearing without translation for him,

(2) He was not legally represented or assisted in his appeal.

(3) The adjudicator did not go to his country to understand the situation and he might not be able to tell whether his evidence was right or wrong.

DISCUSSION

19.  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).

20.  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 that the Board was not wrong. But he wanted the Court to review its decisions.

21.  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.”

22.  The Board, for the reasons given above, found that the applicant’s evidence was not reliable and it rejected his evidence on the facts of his claim.

23.  The grounds under paragraph 18 do not assist the applicant. These grounds are not valid to challenge the Board’s Decision because the Board had heard his evidence before it and found him to be not a truthful witness. The applicant is not entitled to have interpretation service as he may desire[2]. Also, he is not entitled to free legal representation at all stages of the proceedings[3]. It is unnecessary for the adjudicator to go to his country to understand the situation as he was entitled to rely on the country of origin information.

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.

DISPOSITION

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