Shafi Uddin Ahmed Somon v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 2480/2018

[2021] HKCFI 295

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2480 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 decisions of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).  The Director by two decisions refused the applicant’s claim of non-refoulement protection.  The Board dismissed the applicant’s appeal confirming the decisions of the Director.

2.The applicant, born in 1974, is a national of Bangladesh.  He arrived in Hong Kong on 24 October 2008 and was permitted to remain for 7 days as a visitor.  He overstayed and remained in Hong Kong unlawfully.  On 15 November 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 [3-9] 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 as well as his creditor.  He claimed that he was a supporter of a political party, people of another political party threatened to kill him. On the other hand, in 2006 he borrowed 1.5 million BDT from a police officer, Rahman.  In July 2008, as he was unable to repay the loan, Rahman threatened he would kill the applicant and sell off his organs to recoup the money.  The applicant fled from his home city, Dhaka, to live in Rajshahi for 2 months.  He later returned to Dhaka and left the country on 24 October 2008 for Hong Kong by air.

The Director’s decisions

4.By notices of decision dated 16 December 2013 and 28 March 2018 respectively, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The first decision covered torture risk^[1].  The second decision covered BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4].  In his first decision, the Director doubted the credibility of the applicant’s claim because of the inconsistency of his claims. Putting aside the issue of credibility, the Director did not accept that the applicant would be subjected to any real risk if returned to his country.  In his second decision, the Director assessed the level of risk of future harm as low.  He found that reasonable state protection is available to the applicant and internal relocation is a reasonable option for him.  The applicant lodged an appeal/ petition to the Board against the Director’s decisions.

The Board’s decision

5.The applicant attended a hearing before the Board on 29 May 2018.

6.By a decision dated 11 October 2018, the Board rejected the appeal/ petition confirming the Director’s decisions.  The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the applicant’s claim at paragraphs [28-52] of its decision.  In a nutshell, the reasons can be summarized as follows:

(1)  the applicant’s claim relating to his political activities was vague to say the least; his final version was that he had not been threatened or harmed by people of another political party [29];

(2)  based on the asserted past events, the future risk of harm by Rahman is assessed to be very low [37];

(3)  the fact that he stayed in another locality without troubles for two months and he moved back to Dhaka remaining trouble free there before he left his country does not support his fear that Rahman was able or motivated to locate him [39];

(4)  in any event, state protection is available and internal relocation is a viable option for the applicant, which further reduced future risk of harm [44];

(5)  in fact, the Board found that his fear of harm because of his political activities is far-fetched and speculative, the credibility about his inability to repay and that the loan is still outstanding is not accepted [53].

8.Having considered all the evidence and circumstances relied on by the applicant, the Board found that the applicant had not established that he would be at risk of any harm that warrants non-refoulement.

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 6 November 2018 for leave to apply for judicial review.  He named both the Director and the Board as the proposed respondents.  Yet, he only referred to the decision of the Board dated 11 October 2018 as the decision being challenged.  However, in his supporting affirmation, he stated “for leave to appeal judicial review against (the Director) and (the Board) dicission as well to reject my non refoulement claims including (all the four relevant risks).” (sic)

11.I will treat his application as against the two decisions of the Director and the decision of the Board.

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

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

Discussion

14.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.

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

16.In the present case, the Board rejected his account that he was unable to repay the creditor and the loan is still outstanding [52], based on inconsistencies in his claims.  On the factual findings, there would be no factual basis in support of any of the applicable grounds. In any event, even if the loan is still outstanding, the risk of harm was assessed to be low, and the risk would be further reduced by the availability of state protection and viability of internal relocation [44].

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.  He mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense.

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 and the Director.

20.Indeed, even if one gives the applicant’s claimed account of events 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 render international protection.  There was also no valid reason why his creditor still wishes to pursue the applicant after so many years.

21.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.

22.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.

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

24.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 their decisions.  Nor do I see any failure on their part to apply high standards of fairness.

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

Disposition

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

Dated 11 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