Masud Rana v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 968/2018

[2020] HKCFI 2639

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 968 OF 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submission of the Applicant being present/absent in open court.

Order by Deputy High Court Judge C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1970, is a national of Bangladesh. According to the record of the Immigration Department, he had been a frequent visitor to Hong Kong since 2004.  He last arrived in Hong Kong on 24 December 2007 and was permitted to remain as a visitor until 7 January 2008.  He overstayed and remained in Hong Kong unlawfully.  On 14 April 2008, he was arrested by the police and referred to the Immigration Department for investigation.  He then lodged a non-refoulement claim.  He was subsequently released on recognizance.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [29-37] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by people of a political party Awami League (AL) and his creditor, Babul.  He claimed that he was involved in activities of Bangladesh Nationalist Party (BNP) which is not in power.  In October 2007, police falsely accused him of assaulting AL members.  If he goes back to his country, the opposition will kill him.  He borrowed a loan from Babul in the beginning of 2007.  He was unable to repay the loan.  After he arrived in Hong Kong he spoke to Babul on the phone and he said “I know what to do to get the money from you.”

The Director’s decision

4.By a notice of decision dated 30 December 2016, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  Having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low and found state protection as well as internal relocation as a reasonable option available to the applicant.  The decision covered  torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

5.The applicant attended a hearing before the Board on 5 December 2017.

6.By a decision dated 18 May 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the applicant’s claim at para [41-57] of its decision.  The essential reasons can be summarized as follows:

(1)  there are a number of significant inconsistencies between his written claims and his evidence at the hearing relating to central and crucial aspects of his claims, which raises serious doubts about the credibility of his claims [41];

(2)  it did not accept that he was a member of the BNP, or engaged in its activities, or harassed or targeted by AL, or he borrowed money from Babul [50,54-55];

(3)  there is no real risk that he would face any of the proscribed form of harm should he return to his country [57];

Application for leave to apply for judicial review

8.The applicant filed a Form 86 on 29 May 2018 for leave to apply for judicial review of the decision of the Board.

9.By a letter dated 24 June 2020 sent to his reported address, the court invited the applicant to submit any submissions that he would like to make and confirm whether an oral hearing is requested.  Since then, the applicant has not made any response or submission to the court.  The application is therefore considered on the papers.

10.In the Form 86, the applicant did not set out any grounds for the relief sought.  In the affirmation in support, he only said he was not satisfied with the decisions of the Director and the Board and that he is still scared about his life.

Discussion

11.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.

12.When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the court needs to examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This Observations for the Applicant will only focus on discussing the latter’s decision.

13.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and rejected the account of primary facts based on the major inconsistencies and contradictions in the applicant’s evidence.  On the factual findings, there would be no basis for the applicant’s claim on all applicable grounds.

14.As explained above, the assessments of evidence and risk of harm are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

15.The grounds/ complaints raised by the applicant in his Form 86 and affirmation contained nothing to demonstrate why the Board was unfair or unreasonable in the public law sense. I do not find any reasonably arguable basis to challenge the findings of the Board.

16.The applicant’s conduct in Hong Kong by his delay in lodging the claim for protection could have damaged his credibility and was inconsistent with someone in genuine fear for his life and safety.

17.Indeed, even on his own account, the alleged past experiences indicate only a remote and unreal risk that he would be killed or seriously harmed in his country.  There was no valid reason why AL would target him and still wish to pursue him after so many years.  It can hardly be established that the applicant would be at real risk of any type of proscribed harm, if refouled.

18.The Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  It gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.  There cannot be any criticism of the Board’s determination which is eminently reasonable.

19.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness in their decisions.

Disposition

20.For the reasons given, there is no reasonable prospect of success in the applicant’s intended application.  I refuse to grant leave to apply for judicial review.

Dated 15 October 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