Islam Manirul and Others v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1810/2018

[2020] HKCFI 1464

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1810 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicants:

THE APPLICATION

1.The first and the second applicants are husband and wife and the third applicant is their son.  This is the applicants’ joint application for leave to apply for judicial review of the Decision dated 6 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”), which refused their appeal against the Decision dated 24 February 2017 of the Director of Immigration (the “Director’s Decision”), which rejected their non-refoulement claim.

2.The applicants are not legally represented and they did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicants to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicants attended the hearing on 29 November 2019.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court (“RHC”), Form 86 was amended by deleting the Board and replacing it with the Director as the interested party.

The applicants

4.The applicants are Bangladeshi national. They are illegal immigrants. On 9 February 2016, the applicants came to Hong Kong as visitors. They overstayed. They surrendered to the Immigration Department on 24 February 2016. On the same day, they raised non‑refoulement claims. The husband’s evidence will cover the other applicants’ case.

5.The husband claimed that if the family returned to Bangladesh, they would be harmed or killed because of their dispute with (a) his political enemies from the Awami League (“AL”); (b) his creditors and (c) his wife’s ex-husband Nazmul Hasan. This is their joint application. The wife’s claim depends on (a) and (c) and the son’s claim is based upon the 1^st applicant. I shall refer to the first applicant as the applicant and the second applicant as the wife.

6.The events leading to the family leaving Bangladesh can be summarized below.

a.     The applicant was a supporter of the Bangladesh Nationalist Party (“BNP”), a rival party to the ruling party, AL. He had taken part in strikes and protests against the government in 2014. In order to avoid trouble, he had to move from place to place until he left the country in January 2016.

b.     In February 2014, the applicant learned that police had opened a file accusing him of vandalizing property during strikes and protests. He ran two shops and the police went to search his shops and his home as well.

c.     The AL members went to his shops and ransacked them. His brother reported it to police. They did not take action.

d.     At the end of 2014, he fought with a Member of Parliament and he had injured the MP. He was convinced that he would not get a fair trial, so he moved around and travelled to Thailand, Malaysia, India and Nepal. He did not come across any problem with the immigration officials.

e.     In 2015, he traveled to China with his wife without problems. He made profits as he traded in China. He considered that he could not stay in Bangladesh, he and his family moved to China in 2016.

f.     He had borrowed 70 lakh taka (roughly HK$650,000) from the creditors and he was unable repay the debt. The creditors did not harm him.

g.     In 2010, his wife married her maternal uncle, who abused her from time to time. She gave birth to her son. Later, she divorced her husband and married the applicant. Nazmul harassed her family and had once fought with her brother.

The Director’s Decision

7.The Director considered their joint application in relation to the following risks:

a.     risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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”).

8.By the Director’s Decision, the Director refused their claims for the reason that their claim was not substantiated. The Director took the view that there were no substantial grounds to believe that he and his family would have the claimed risk [16]; that state protection was available to them [18] and internal relocation was an option open to them [19].

The Board’s Decision

9.The applicants appealed to the Board and appeared before the Adjudicator.

10.By the Board’s Decision, the Board rejected their appeal and confirmed the Director’s Decision.

11.The Board considered the applicant’s evidence. It did not accept any part of his claim in relation to being sought by the authorities or to have problems owing to his loans or on account of his wife’s former marriage [37] and for those reasons, it concluded that the applicant and his family did have a safe and reasonable internal relocation alternative and did not face a real risk of any form of harm upon return to Bangladesh [44].

Application for leave to apply for judicial review

12.The applicants filed Form 86 dated 3 September 2018 for leave to apply for judicial review of the Board’s Decision.

13.In the affirmation in support of their application, the applicant said that police were still looking for him; he could obtain some loan documents to prove his case; the police had threatened that they would kill him; the creditors had gone to his family in Bangladesh and demanded money from his sister and his brother-in-law, who was injured by the creditors; that he was able to move around because he paid money to people to alter the travel documents for him; that he and his mother were fighter for freedom and they had the risks; his wife’s former husband was a crazy man who could kill them easily and they would be harmed if they returned to Bangladesh.

DISCUSSION

14.The applicants appeared before me and they confirmed that they were treated fairly when they appeared before the immigration officer and the Adjudicator of the Board.

15.When I put the Board’s findings to the applicant, he submitted that he did not agree with the Adjudicator’s views on state protection and internal relocation. He also submitted that the Board did not consider other websites which might have information in favour of his case. On this issue, the burden is on the applicants to submit the websites which they consider might have information in favour of their case because the burden is on them to prove their case. The high standards of fairness only require the Board to render assistance to them if they raise the websites to it and if they had difficulties in accessing these websites.

16.Those submissions in support of their application are facts they want to dispute. However, the submissions do not assist their case because the Board is tasked with the duty of fact-finding. There is no evidence to show that the Adjudicator had committed any error or it was unreasonable for him to have to come to his own conclusions as the facts of the case.

17.In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

18.The applicants fail to show that they have any reasonable prospect of success in their proposed judicial review.

CONCLUSION

19.Since the applicants’ application for judicial review has no reasonable prospect of success, I refuse to grant them leave to apply for the intended judicial review. Accordingly, I dismiss their application.

Dated the 9^th day of July 2020

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