Case Document

100%Judiciary

HCAL 2358/2018

[2020] HKCFI 3080

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2358 OF 2018

BETWEEN
	Alom	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 1977, is a national of Bangladesh. He arrived in Hong Kong on 8 January 2014 and was permitted to remain until 15 January 2014 as a visitor. He overstayed and remained in Hong Kong unlawfully. On 20 January 2014, 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 [35] 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 two groups of persons, namely (1) Babu and his people, who are local people associated with the ruling party, Awami League party (AL), and (2) his wife and his wife’s brothers. He claimed that he had been a member of Jamaat Party and responsible for organising activities of the party. He was promoted to General Secretary of Jamaat in Mirpur 1, Dhaka in around 2009. After the general election in December 2008, which resulted in the Awami League party becoming the majority party, senior Jamaat members were being prosecuted. In around 2011, Babu and his men attempted to extort money from the applicant to enable him to continue trading without trouble. The applicant refused and was attacked by Babu and his men. A bomb was also thrown in the front part of his shop and he was injured and hospitalized. Someone made a report to the police on his behalf but the police did not accept it. He later took part in a large anti-AL government protest in around 2013 and was beaten by the police randomly. He was advised by his sister to leave the country. He left Bangladesh on 8 January 2014 for Hong Kong. When he was in Hong Kong, his wife discovered that he had a girlfriend here. She and her two brothers threatened over the phone to kill him upon his return to Bangladesh.

The Director’s decision

4.By a notice of decision dated 12 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. He found that state protection is available to the applicant and internal relocation is a viable option for him. 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 28 May and 26 June 2018.

6.By a decision dated 10 October 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 paragraphs [36-86] of its decision. In a nutshell, the reasons can be summarized as follows:

(1) the failure of the applicant to take the first opportunity to seek protection promptly after arriving in Hong Kong undermined his credibility [24];

(2) the number and nature of inconsistencies and contradictions in the applicant’s evidence were sufficiently serious as to undermine the reliability of his story [37];

(3) the Board did not accept the core of his claim including that he was a member of or held office in Jamaat as he claimed; that he was injured in 2011 attack and 2013 protest; that his wife and her brothers are a threat to him; and that the government of Bangladesh was unwilling to help him [38];

(4) in any event, state protection is available and internal relocation is a viable option for the applicant [53, 82].

8.Having considered all the evidence/ 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.

9.Accordingly, the Board dismissed the applicant’s appeal on all applicable grounds.

Application for leave to apply for judicial review

10.The applicant filed a Form 86 on 26 October 2018 for leave to apply for judicial review of the decision of the Board.

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

12.In the Form 86 and supporting affirmation, the applicant did not set out any proper grounds for the relief sought.

Discussion

13.The relevant principles regarding non-refoulement claims 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.

14.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.

15.In the present case, the Board rejected the applicant’s account of primary facts based on the major inconsistencies and contradictions in his evidence. On the factual findings, there would be no factual basis in support of any of the applicable grounds.

16.Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the availability of state protection and viability of internal relocation.

17.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.

18.The applicant stated no grounds of the judicial review in Form 86 and his affirmation in support.

19.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.

20.The Board, with the benefits of hearing the applicant’s oral evidence for two days, rejected the non-refoulement claim mainly based on its adverse finding on the applicant’s credibility with detailed reasons set out in its decision. I do not find any reasonably arguable basis to challenge the findings of the Board.

21.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.

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

23.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.

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

Disposition

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

Dated 23 December 2020

	(Chung Lai Fan, Christine)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 23 December 2020 Alom Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 23 December 2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 8592/17/9/264/B979 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1802/17 (Formerly RBCZ 1270/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

Cites 2 cases

Cases cited in this judgment

Nupur Mst v. Director of Immigration