Titu Mia v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 2884/2018

[2020] HKCFI 1747

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2884 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 Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 7 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

The applicant

2.The applicant is a Bangladeshi national. He came to Hong Kong on 16 February 2007 illegally and was arrested by police on 23 December 2007. He was convicted of offences and sentenced to imprisonment, the longest one being 11 months’ imprisonment on 13 December 2013.

3.He claimed that if refouled, he would be killed by the Bangladesh National Party (“BNP”) because he was a supporter of the Awami League Party (“AL”) and he refused to pay the entire amount of the extortion money as demanded. He also claimed that he received threats from AL for having no contact with them for a long time.

4.The relevant incidents took place as set out below.

a.The applicant worked in his family shop selling cosmetics. In 1998, he joined AL as a general member. By the end of 1998, he was appointed general secretary of AL. In 2001, the BNP won the general election and came into power. The BNP members attacked the AL supporters. They extorted, ran riots and looted. Police turned a blind eye on them. From 2001 to 2004, he received verbal threats from the BNP people for money.

b.In 2004, some 10 to 15 BNP people came to the shop and extorted money. When he refused to pay, they beat him up with bare hands and sticks. He became unconscious. He was sent to hospital where he stayed for 10 to 12 days for medical treatment.

c.His brother reported the incident to police. The police refused to register it.

d.In October or November 2006, 10 BNP people camo to his shop again for money. They demanded 500,000 Takas. He did not have the money whereupon they beat him up with bare hands, sticks and stabbed him with long knives in his left ankle. He fell unconscious. He was hospitalized for 7 days. His brother, again, reported the case to police. The police refused to register the case.

e.His brother told him that the family shop was looted by the BNP people. The shop closed down.

f.  Two days after the shop having been looted, the same group of BNP people came to his house and demanded payment of money. They fired gun shots into the air. He fled.

g.In the beginning of 2007, he paid an agent to help him to go to China. Then he came to Hong Kong.

The Director’s Decisions

5.The Director considered his application in relation to the following risks:

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

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”).

6.By Notice of Decision dated 17 July 2015 (“the Director’s Decision”) and Notice of Further Decision dated 4 April 2018, collectively called (“the Director’s Decisions”), the Director rejected his claim for the reason that it was unsubstantiated. The Director found that the level of risk of harm as he claimed was low [20]; state protection would be available to him [29]; internal relocation was an alternative open to him [30] and BOR 2 risk did not apply to his case. See paragraph 6 of the Director’s Further Decision.

The Board’s Decision

7.The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator on 14 September 2018. The parties were legally represented before the Board.

8.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decisions.

9.The Board considered the applicant’s evidence and found that the level of harm he suffered was low; future risk of harm from BNP was very low and motivation for BNP to harm him for extortion was low; his evidence in relation to the BNP’s extortions and assaults was inconsistent and was not credible; his evidence of being assaulted seriously and he fell unconscious at the shop and at home was inconsistent and therefore not credible; internal relocation was an option open to him and state protection should be available as his evidence that his brother reported the incidents to police was not credible. See paragraphs 33-54 of the Board’s Decision.

Application for leave to apply for judicial review

10.The applicant filed Form 86 dated 17 December 2018 for leave to apply for judicial review of the Board’s Decision.

11.In support of his application, he relied upon the grounds below.

1.Misdirection in the law – that he had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future.

2.Procedural impropriety/unfairness – failing to carry out sufficient research and inquiry into the Country of Origin Information (“COI”) on updated materials such as the USHR 2010, USRF 2010 and The International Commission of Jurists (ICJ) “Report on the ICJ Mission to Bangladesh” Autumn 2011 and just relying on outdated materials; failed to obtain requisite documents in support of his case; failing to provide the hearing bundle on time with translation, making him confused at the hearing; failing to give screening for the BOR 2 risk assessment; failing to call for psychological and psychiatric evaluations; applying the incorrect standard of proof, and failing to provide legal representation or service to him.

3.Irrationality – cherry-picking COI and relying upon outdated materials; failing to find fact whether there was a consistent pattern of gross, flagrant of mass violation of human rights as required under Article 3(2) of CAT; failing to assess state protection or extended meaning of state protection; failing to consider relevant information or considered irrelevant information to his prejudice.

DISCUSSION

12.In this case, the applicant’s legal representative had raised the Director’s Decisions and put forward his reasoning and findings in issue. The Board had taken those points into consideration when making its independent decision of its own. See paragraph 33 of the Board’s Decision.

13.The Board, however, came to the same conclusions as the Director’s.

14.It is obvious that the Board had found facts of the case and concluded that the factual basis of the case did not support his claim.

15.I put the Board’s findings to him and asked him if he had any comments on them. He said that he had no comments.

16.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.”

17.I consider that it is not necessary to go into detail of the grounds above. The applicant was legally represented at the screening stage and also at the appeal hearing. Those grounds are either his opinions without evidence in support of them or they are irrelevant to the proceedings in this case. They are invalid grounds.

18.The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

19.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.

Dated the 30^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