Madbor Rasal v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2465/2018

[2021] HKCFI 453

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2465 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 1988, is a national of Bangladesh.  On 18 February 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 [2-8] 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 ruling party known as Awami League (“AL”).  He claimed that he was a committee member of an opposing party, Jamaat-e-Islami (“JEI”) responsible for recruiting supporters and promote JEI.  About 30-40 young members were under his command.  On 5 May 2013, he participated in a political demonstration and assembly (“the assembly”) which was dispersed by the local police and AL supporters with tear gas and fire arms.  He was injured at his left leg.  Later AL members began penalizing JEI leaders.  He was targeted since October 2013 and 2 false criminal charges had been filed against him for assaulting AL members and for possessing fire arms.  He fled to Dhaka to live with his cousin for 2 months before he departed his country by air for China on 7 January 2014.  He later illegally entered Hong Kong by climbing over the border fence.

The Director’s decisions

4.By notices of decision dated 12 February 2016 and 14 June 2017 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], BOR 3 risk^[2], and persecution risk^[3]. The second decision covered BOR 2 risk^[4].  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 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 30 August 2018.

6.By a decision dated 19 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 claimat paragraphs [20-87] of its decision.  In a nutshell, the Board accepted that he was a member of JEI.  However, it refused to accept that he was a leader or an organizer of political activities or a prominent member of JEI.  Nor did it accept that his membership with JEI had triggered AL or the local government to adversely target him personally [27].  The Board noted that he told immigration officers in December 2015 that he intended to submit documents to substantiate his account that criminal charges had been laid against him due to political reasons.  Yet, after more than 2.5 years, he still could not submit any such documents to substantiate his account [30].  It refused to accept that he had attended the assembly and that he would face criminal charges in his home country.  Moreover, there is no evidence to show that he will not face a reasonably fair trial if he is brought before the local court [32].  In conclusion, the Board found the applicant’s account untruthful and refused to accept that he had been ill treated or persecuted as alleged or there is a real risk of such harm or deprivation of life, if refouled [37].  In any event, the Board found state protection is available and internal relocation is a reasonable option for the applicant [84, 87].

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

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 5 November 2018 for leave to apply for judicial review of the decision of the Board.

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

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

Discussion

12.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.

13.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 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.

14.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and rejected his major account of primary facts. On the factual findings, there would be no factual basis in support of any of the applicable grounds.  Moreover, it also found the availability of state protection and viability of internal relocation.

15.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.

16.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.

17.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.

18.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.

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

20.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.

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

Disposition

22.Accordingly, application for leave to apply for judicial review is refused.

Dated 2 March 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