Mohammad Naeem v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1435/2018

[2020] HKCFI 2736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1435 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 by the Applicant 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 1976, is a national of Bangladesh.  He last arrived in Hong Kong on 27 November 2005 and was permitted to remain until 11 December 2005 as a visitor.  He overstayed and remained in Hong Kong unlawfully.  On 26 January 2007, he was arrested by the police and referred to the Immigration Department for investigation.  He then lodged a torture claim on 6 February 2007.  He was subsequently released on recognizance.

3.His torture claim was rejected by the Director on 4 October 2011.  He lodged a petition against that decision which was refused by the then Adjudicator of Petition Team, Security Bureau, on 11 November 2011.  By consent, the determinations of the Director and the Adjudicator were quashed and the torture claim was remitted to the Director to be determined afresh.  On 30 November 2017, the Director rejected the Applicant’s non-refoulement claim.  The Applicant appealed against that decision to the Board.

4.The facts of the case and the basis for the Applicant’s non-refoulement claim are summarized at para [10-22] 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 a group of gangsters known as the Omar group because he refused to pay the money extorted by them.  He claimed that from 1995-2001, he was doing hosiery business at Alam Market in Keranigonj in Bangladesh. In 2000, Omar together with other members of the Omar group started to demand money from him.  He refused to pay and dodged from them.  One day in 2001, two persons from the Omar group took him to a school and pointed a pistol at him to demand for money.  He was physically pushed.  To save his life, he agreed that he would pay.  He reported the matter to the local police but his complaint was ignored.  He then made a complaint to the Committee of Alam Market.  He informed Delawar Hossain, the general secretary of the Committee, about the threat he received.  Delawar was killed by the Omar group in July 2001 after he tried to stop the Omar group from extorting money from the market holders.  He became scared and closed down his business.  From 2001 to 2002, he lived in different places to hide from the Omar group.  In 2002, he decided to leave for Hong Kong as he feared for his life.  He travelled between Hong Kong and China between 2002-2005 for business in buying materials and sending the materials back to Bangladesh.

5.Three newspapers clippings were submitted by the Applicant purportedly related to the murder of Delawar Hossain by the Omar group.

6.Immigration records revealed that between 2002 and 2005, the Applicant had been frequently travelling to Hong Kong in two different identities.  He overstayed since 12 December 2005.

The Director’s decision

7.By a notice of decision dated 30 November 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.  He found that state protection is available to the Applicant and internal relocation is a viable option for him, which further lower the level of risk.  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

8.The Applicant attended a hearing before the Board on 4 July 2018.

9.By a decision dated 16 July 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

10.The Board gave detailed reasons for rejecting the Applicant’s claim at paragraphs [58-95] of its decision.  In a nutshell, the reasons can be summarized as follows:

(1)  the Applicant’s claimed threats from Omar group was vague and general [59];

(2)  the 3 newspaper clippings produced were questionable as to its reliability [61];

(3)  there were numerous inconsistencies in his evidence [63];

(4)  he claimed to have come to Hong Kong to seek protection in March 2002, but he did not ask for protection until after he was arrested for overstaying in January 2007 [65];

(5)  the Board did not find his evidence to be credible and did not accept that he had been threatened by the Omar group [72];

(6)  in any event, state protection is available and internal relocation is a viable option for the Applicant [66, 70].

11.Having considered all the evidence and circumstances relied on by the Applicant, the Board found that the Applicant would not be at real risk of any types of the proscribed harm, if refouled.

12.Accordingly, the Board dismissed the Applicant’s appeal on all applicable grounds.

Application for leave to apply for judicial review

13.The Applicant filed a Form 86 on 20 July 2018 for leave to apply for judicial review of the decision of the Board.

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

15.In the Form 86 the Applicant did not set out any grounds for the relief sought.

16.In the affirmation in support, he attached two pages which referred to some general legal principles in considering international protection.

Discussion

17.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.

18.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 will 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 decision will only focus on discussing the Board’s decision.

19.In the present case, the Board in fact rejected the Applicant’s appeal/ petition on the ground that it disbelieved the Applicant and found him to be an incredible witness.  The Board rejected his account of primary facts based on the major inconsistencies and implausibility in his evidence.  On the factual findings, there would be no factual basis in support of any of the applicable grounds.  Moreover, the Board found state protection and internal relocation are available to the Applicant.

20.As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation 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.

21.The Applicant stated no grounds of the judicial review in Form 86.  The 2-page “Analysing the refusal letter” only referred to some general legal principles.  He mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense.  I fail to see the relevance of the purported legal principles to the present case.  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.

22.The Applicant’s claim is very weak.  He claimed to come to Hong Kong in 2002 to seek protection. However, he did not lodge his claim for protection until he was arrested for overstaying in 2007.  He also travelled in and out of Bangladesh from 2002 to 2005.  The Applicant’s conduct was inconsistent with someone in genuine fear for his life and safety.

23.Further, even if one gives his account the most favourable interpretation, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating no real risk of future harm.  It came nowhere near the level of severity required by law to constitute torture or CIDTP.  There was no valid reason why the Omar group would target him and still wish to pursue him after so many years.

24.The evidence can hardly establish that the Applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

25.Both 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.

26.There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

27.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.

28.For the reasons given, there is no prospect of success in the Applicant’s intended application for judicial review.

Disposition

29.Accordingly, leave to apply for judicial review is refused.

Dated 11 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