Ershad Mohammed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 489/2019

[2021] HKCFI 507

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 489 OF 2019

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 refused the applicant’s claim of non-refoulement protection.  The Board dismissed the applicant’s appeal confirming the decision of the Director.

2.The applicant, born in 1973, is a national of Bangladesh.  On 4 September 2015 he surrendered to the Immigration Department claiming that he entered Hong Kong via China illegally on 3 August 2015.  He first made non-refoulement claims in May 2016 and was subsequently released on recognizance.  On 8 January 2018, he was arrested for taking up unapproved employment and subsequently sentenced upon conviction.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [18-24] 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 members of the Awami League (“AL”) political party if he returns to Bangladesh.  He was a member of the Bangladesh Nationalist Party (“BNP”).  The AL came to power in 2008 when it won the election and started to persecute BNP members.  From 2008 to 2014, people of AL insulted him many times.  In early 2014, while doing his transport business in Dhaka, someone set fire to his bus.  In around June 2014, he was assaulted by some people who were armed with knives and hockey sticks.  He was hospitalized for 4 days.  His cousin told him the attackers were sent by Alamgir, a local leader of AL.  In January 2015, fearing that the AL would harm him, he moved to Tongi with his family.  However, AL people continued to threaten to kill him.  He therefore departed Bangladesh for China by air on 28 July 2015 and entered Hong Kong on 3 August 2015.

The Director’s decision

4.By a notice of decision dated 11 June 2018, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  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 Board arranged a hearing for the applicant to take place on 23 January 2019.  He was duly notified of the hearing.  By a letter dated 19 November 2018, the applicant requested the Board to “proceed to the decision part” and “skip the hearing part” to enable him to “receive the decision as soon as possible”.  The Board informed him that it was generally considered desirable for an oral hearing, and should he decline to attend the hearing the Board would proceed to make a decision based on the information presently at hand.  The Board suggested that he should give the matter further consideration.  By a letter dated 29 November 2018, the applicant confirmed that he would like to “skip the hearing part” and “skip the oral hearing”.  The Board therefore proceeded to determine the appeal/ petition without a hearing.

6.By a decision dated 11 January 2019, 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 claimat para [25-54] of its decision.  In a nutshell, the Board found that without an oral hearing, the Board was unable to be satisfied of the truth or nature of the central aspects of the applicant’s circumstances [27].  As he had not provided any supporting documentation in respect of his membership of BNP and medical documentation in respect of his claim to have been targeted for harm and actually harmed, the only evidence to support his claims was his testimony tested by his brief participation in his interview (with the immigration officer) on 5 June 2018 [30]. Having considered the detail of the information before it, the Board found gaps and anomalies in it [31].  As a result, the Board was unable to accept that he faced a real chance of harm of any nature for any of the reasons he claimed [32].  It could not be satisfied that he was an actual or perceived active supporter/ member of the BNP who was targeted for harm and/ or actually harmed by people of the AL or anyone else [33].  It did not accept that he would face a real chance of harm of any type in Bangladesh in the reasonably foreseeable future for any of the reasons he claimed [34].  There were no substantial or strong grounds for believing that there is a real risk that he would be subjected to torture or CIDTP in Bangladesh [47].

Application for leave to apply for judicial review

8.The applicant filed a Form 86 on 20 February 2019 for leave to apply for judicial review of the decisions of the Director and the Board.  He did not request an oral hearing.  The application is therefore considered on the papers.

9.In the Form 86, the applicant did not set out any ground for relief.  In his affirmation in support of his application, he said: 1. “information provided was biased and irrelevant”; 2. “failed to determine my threat upon my return to my native country; 3. “judgment based on information provided was neglected”.

Discussion

10.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 and COI materials, 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.

11.When the applicant pursued his 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 examines the decisions of the Director and the Board, it is unnecessary to delve into the decision of the Director.  Thisdecision will only focus on discussing the Board’s decision.

12.In the present case, the Board could only assess the case of the applicant on the information before it without the opportunity to examine and clarify his case.  Having considered all the information before it, it found gaps and anomalies in his claims.  On the evidence before it, the Board did not accept that he was an actual or perceived member of BNP who was targeted for harm or actually harmed by people of AL or anyone else.  It therefore rejected that he would face a real risk of any types of proscribed harm.  On the factual findings, there cannot be any basis for the applicant’s fear.

13.As mentioned above, assessment of evidence and evaluation of risk of harm are primarily within the province of the Board and the Director.  This court will not interfere with the decisions unless there is a public law ground for the court to do so.

14.The applicant’s complaints in his affirmation were only general and vague assertions without particulars and evidence in support.  They are not viable or reasonably arguable to challenge the findings of the Board.

15.The applicant had been given every opportunity to present his case in an oral hearing.  He declined to appear at an oral hearing.  It was entirely proper for the Board to proceed to assess his claim on the available information before it.  Having evaluated all the information, it came to an adverse finding on the reliability of the applicant’s claims.  There cannot be any criticism of its decision which is eminently reasonable on the information before the Board and the facts found by it.

16.Even on the applicant’s own account, he was not holding any senior position in BNP and there is no good reason why the people of AL would wish to target and pursue him after so many years.  There is no substantial ground for believing that he would be at real risk of any types of proscribed harm, if refouled.

17.Having considered the decisions of both the Director and the Board with rigorous examinationand 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.

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

Disposition

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

Dated 9 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