Salim Md v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1284/2018

[2020] HKCFI 2697

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1284 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 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 decisions of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1977, is a national of Bangladesh.  On 16 October 2015, 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 [46-66] 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 abbreviated as AL.  He claimed he joined another political party, BNP, in 1998 and became General Secretary of the BNP committee in Chardapur.  On a few occasions, he had been assaulted by members of AL with weapons.  They demanded him to join their party but he refused.  Fearing that it was not safe for him to remain in Bangladesh, he paid an agent who organised a visa for him to fly to China on 11 October 2015 and he eventually came to Hong Kong illegally via the mainland.

The Director’s decision

4.By a notice of decision dated 18 September 2017, 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 10 May 2018.

6.By a decision dated 19 June 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave very detailed reasons for rejecting the applicant’s claim at para [67-139] of its decision. In a nutshell, the Board found:

(1)  the applicant’s evidence was not believable because of gaps, inconsistencies and other problems with his evidence [138];

(2)  it did not accept that the applicant has ever been a member of BNP, let alone a person holding senior office at the local level [128];

(3)  neither he nor his brothers have ever been harmed or threatened with harm because of his or their political views, nor was he asked to pay or join the AL [130];

(4)  There is not a real risk that the applicant would face any of the proscribed forms of harm should he return to Bangladesh [137].

Application for leave to apply for judicial review

8.The applicant filed a Form 86 on 5 July 2018 for leave to apply for judicial review of the decisions of the Director and the Board.

9.No request for oral hearing has been made.  The application is considered on the papers.

10.In the Form 86 and affirmation in support his application, the applicant did not set out any grounds for the relief sought.

Discussion

11.The relevant principles regarding 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 Board’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 gaps, inconsistencies and contradictions in the applicant’s evidence.  On the factual findings, there would be no factual basis in support of any of the 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 applicant did not pinpoint any procedural irregularity, unfairness or unreasonableness of the Board.  In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

16.Even if one gives his account the most favourable interpretation, the alleged past ill-treatment was of low intensity and frequency demonstrating only a remote and unreal risk of future harm.  It cannot be established that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

17.The Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  They gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.  There cannot be any criticism of their decisions which are eminently reasonable.

18.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

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

Dated 4 November 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