Nur Ali v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2463/2018

[2021] HKCFI 235

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2463 OF 2018

BETWEEN

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 1981, is a national of Bangladesh.  The background of his application can be seen from the decision of the Board as follows:

“2. On 4 May 2004 he arrived in Hong Kong under the name of Ali Nur Islam. He made side trips between Hong Kong and China. On 15 June 2004 he arrived again in Hong Kong and was permitted to remain until 19 June 2004. He overstayed and was arrested on 7 July 2004 by police for overstaying. On 13 July 2004 he was convicted and sentenced to 1 month’s imprisonment suspended for 2 years. On 13 August 2004, he returned to Bangladesh.

3. On 29 October 2004 he arrived in Hong Kong under the name of Ali Nur. He made side trips between Hong Kong and China. On 24 November 2004 he arrived in Hong Kong and was permitted to stay until 26 November 2004. He overstayed and was arrested by police on 31 August 2006 for overstaying.

4. He lodged a torture claim by way of written submission dated 9 September 2006.

5. On 14 November 2009 he was arrested by police for taking employment while being a person in respect of whom a removal order was in force. He was convicted and sentenced to 2 months’ imprisonment.

6. On 11 October 2011 he registered a marriage in Hong Kong.

7. On 14 May 2013 his torture claim was rejected. On 27 May 2013 he appealed to the Torture Claims Appeal Board. On 11 October 2013 the Torture Claims Appeal Board confirmed the decision in rejecting his torture claim. However, the appeal is remitted from the High Court for re-consideration by Torture Claims Appeal Board.

8. On 28 December 2016 he was arrested by police for taking employment while being a person in respect of whom a removal order was in force. On 3 February 2017 he was convicted and sentenced to 16 months’ imprisonment. He is currently serving sentence in Tai Lam Correctional Institution.

9. Under the Unified Screening Mechanism his claim for non-refoulement protection is assessed on all applicable grounds including:-

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

ii. risk of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR 2”) (“BOR 2 risk”);

iii. 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 (“BOR 3”) (“BOR 3 risk”); and

iv. risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“RC”) (“persecution risk”).

10.    By a Notice of Decision dated 6 October 2017 the Immigration Officer on behalf of the Director of Immigration rejected his non-refoulement claim.  He now petitions that decision to the Non-refoulement Claims Petition Office.”

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [23] 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 the Bangladeshi Nationalist Party (“BNP”) because he refused to join them.  Moreover, he had been falsely accused of two murder cases.  He claimed that he was a member of the student wing of the Awami League (“AL”).  His post was Campaign Secretary.  In March 2002, he was kidnapped and assaulted by BNP members when he refused to join their party.  On 9 September 2003, he met his friends with a view to have a girl named Tisa introduced to him.  She accidentally slipped into a pond and drowned.  Her father filed a murder case again him and his friends.  The applicant’s friends had been arrested and sentenced to either death penalty or life imprisonment. On 22 February 2004, in the presence of himself and his friends, their friend named Mosharof was killed by BNP members because Mosharof changed his party and joined AL.  Mosharof’s father, under the control of the attackers, filed a case against him and his friends accusing them of murdering his son.  BNP was in power at that time.  Police and BNP people had raided his home but he managed to escape through the backdoor.  The applicant fled to live in another area where his aunt lived for two months before he left his country on 30 April 2004.  Then he travelled back and forth between China and Hong Kong on the instruction of his agent.  After he was arrested by Hong Kong police and returned to his country in August 2004, he bribed the immigration officers in Bangladesh to obtain a new passport. On 18 October 2014, he left his country again for China via Hong Kong. He first stayed in Shenzhen waiting for his agent’s instructions for his departure to Japan. He got a 2-day visa in Hong Kong. He found out he was cheated by his agent and his visa expired on 27 November 2004 and he overstayed. He claimed that Bangladeshi police and BNP members were still looking for him.

The Director’s decision

4.By a notice of decision dated 6 October 2017, the Director rejected the applicant’s non-refoulement claim.  Having taken into account all relevant circumstances, the Director assessed that there are no substantial grounds for believing that his perceived fear is real and foreseeable; that he would be arrested without going through investigation by the police; and that he would be charged without a fair and proper judicial process.  He found that state protection is available to the Applicant and internal relocation is a viable option for him.  The decision covered BOR 2 risk^[1], BOR 3 risk^[2], and persecution risk^[3] (as the torture risk^[4], had been assessed and refused previously).  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 8 June 2018 (having previously failed to attend an oral hearing scheduled for him on 27 February 2018).

6.By a decision dated 31 August 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds (torture risk, BOR 2 risk, BOR 3 risk, and persecution risk).

7.The Board gave very detailed reasons for rejecting the applicant’s claimat paragraphs [31-55] of its decision.  In a nutshell, the reasons can be summarized as follows:

(1)  he was abducted by BNP members 16 years ago and he did not sustain serious injury on that occasion [31(i)];

(2)  Tisa slipped and drowned (accidentally) and he went into hiding when the police look for him when they had the duty to investigate [31(ii)];

(3)  with a lapse of over 12 years, even if BNP people had intention to ill-treat him, their interest would have dissipated; and in any event, AL is now in power [31(iv)];

(4)  the Board also had doubts if the applicant had disclosed all true facts for detailed reasons given by the Board at [31(v-x)] including his conduct of not applying for protection when he made side trips between Hong Kong/Mainland China and overstayed in Hong Kong in 2004, and he only applied for protection after he was arrested by police on 31 August 2006 which was almost 2 years after he arrived;

(5)  there is objective COI showing that there are alternate avenues to seek justice in Bangladesh and the right to fair trial, there is no reason to believe that a fair trial would not be provided [35];

(6)  in anyevent, state protection is available and internal relocation is not unduly harsh for the applicant [36, 55].

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

16.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.

17.The applicant stated no grounds of the judicial review in Form 86.  He mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense.  Nor was there a challenge with regard to procedural regularity and fairness.

18.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.

19.The applicant delayed in lodging the claim for protection after he first came to Hong Kong in May 2004 and even after he came again in October 2004.  He only lodged his torture claim in September 2006 after he was arrested by the police for overstaying.  His delay, although not determinative of the claim, was inconsistent with someone in genuine fear for one’s life and safety.  The Board properly took this into account as adversely affecting the credibility of the claim.  In any event, the Board found there is reasonable state protection and internal relocation is viable.  It was entitled to come to these findings which would dissipate any perceived harm the applicant might have.

20.The applicant has been in Hong Kong since October 2004.  The records show that the applicant has had ample and fair opportunity to present his case to the Director and the Board. The decisions of the Director and the Board are plainly fair and reasonable.

21.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.

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

Disposition

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

Dated 4 February 2021

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