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

HCAL 2272/2018

[2021] HKCFI 1151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2272 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 submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.The Applicant is a Bangladeshi national.  He sneaked into Hong Kong from Shenzhen on 19 July 2015.  On 23 July 2015, he surrendered to the Immigration Department.  On 24 September 2015, he applied for a non-refoulement protection claiming that he will be harmed or killed if returned to Bangladesh as a result of political violence.  On 11 February 2017, he was arrested by the police being suspected of taking up unapproved employment.  He was convicted of the offence on 11 August 2017 and sentenced to a total of 20 months’ imprisonment.

2.In due course, his non-refoulement claim was assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely:

(1)   risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Risk”);

(2)   risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 Risk”);

(3)   risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“Persecution Risk”); and

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

3.By a Notice of Decision dated 22 March 2018 (the “Notice”), the Director of Immigration (the “Director”) rejected his claim.  On 6 April 2018, he lodged an appeal to the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) against the decision of the Director.  On 10 October 2018, the Board dismissed his appeal (the “Decision”).  On 18 October 2018, he applied for leave to apply for judicial review against the Notice of the Director and the Board’s Decision.

4.The decision of the Director in the Notice is not subject to judicial review because there are in place procedures for appeal against the Director’s decision to the Board.  In fact, the Applicant has invoked those procedures by appealing to the Board.  A judicial review of the Decision of the Board, if he is entitled to, would adequately protect his interest.  The Court therefore treated his application as an application for leave to apply for judicial review of the Decision of the Board dated 10 October 2018 and his complaints against the Director as being directed at the Board as well.

The Applicant’s case

5.The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form which was prepared by him with assistance of the Duty Lawyer Service and incontrovertible evidence.  In essence, he claims that he will be killed by the Awami League (“AL”) party due to political enmity, if he is returned to Bangladesh.  AL was and is the ruling party in the Bangladesh Parliament.

6.The Applicant became a member of the Chatra Dal, ie the student wing of Bangladesh Nationalist Party (“BNP”) as an ordinary worker and member since 2007 under the influence of his father, who is the president of Kayampur Union BNP committee.  There were frequent conflicts and clashes between Chatra Dal and Chatra League, ie the student wing of AL. 

7.On a day in late January 2015, the Applicant took part in a countrywide political campaign against the AL government.  Conflicts between supporters of BNP and supporters of AL ensued and some cars belonging to AL members were damaged.  A blockade was enforced.

8.Hours after the blockade, a group of Chatra League and policemen went to the Applicant’s home to arrest him.  The Applicant was not at home.  The Applicant said he was wrongfully accused by Chatra League and the charge was brought against him by bribery.  He was worried and fled to Chittagong and stayed with a friend, Jubaid.

9.One day, a few policemen and people whom the Applicant suspect were members of AL came to look for him in Jubaid’s home.  Fortunately, the Applicant was not there.  The men asked Jubaid for the whereabouts of the Applicant and threatened to arrest and kill him.  The Applicant was very frightened because AL is the ruling party, had absolute control of the country’s police force, and could easily locate him wherever he was within the country.  He fled to Dhaka to stay with Jubaid’s friend, Mijan.  From there, he flew to Guangzhou and then sneaked into Hong Kong via Shenzhen.

The finding of the Board

10.The Board found the Applicant was not a witness of truth and was not satisfied he had told the Board the truth about his political activities and associations in Bangladesh or the reasons why he left his home and why he does not wish to return.  The Board had serious concerns about his level of knowledge of the BNP, and his knowledge of the electoral history of Bangladesh, as well as differences between the Applicant’s oral evidence and the information he had previously provided in support of his claim.

11.The centrepiece of his case is that he was being sought after because of political enmity as he was the vice president of the student wing of BNP or the vice president of the party at the union level and actively involved in anti-government actions during the January 2015 election.  According to the Country of Origin Information (“COI”), the election was held in January 2014 and not in 2015 as the Applicant alleged.  He came to Hong Kong a year and half after the election.  That cast a serious doubt as to the credibility of his account. 

12.The Board was also concerned that the Applicant was unable to describe the BNP flag or the symbols on the flag and was unable to comment on the aims and objectives of the party. The Board expected a person whose father was a president of the BNP at his union level and who was a supporter or worker of the BNP and a vice president of the party or of the Chatra Dal at his local level since 2007, to be able to describe the BNP flag and speak to some of the party’s aims and objectives.

13.Having found the Applicant not a truthful witness, the Board did not accept his evidence, in particular that he was politically active or attended meetings, rallies and processions as claimed which provoked the AL to sought after him for his life. The Board found that there is not a real risk the Applicant would face any of the proscribed forms of harm should he return to Bangladesh.

Grounds for judicial review

14.The Applicant advanced four grounds in his application.  These grounds are word-for-word copied from other applications. Some do not fit into his case at all.  These are:

(1)   the Decision of the Board is not reasonable and fair as required by the Wednesbury test;

(2)   the Director or the Board failed to give weight to the presence of state acquiescence; that the Applicant was tortured at the behest of the state law enforcement agencies as well as those in the high ups of political circles;

(3)   the Board failed to give weight to the COI in support of the Applicant’s case; and

(4)   the Director or the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to consider that the corruption and incompetency of the administration in Bangladesh is still a very serious problem.

15.In his submission dated 5 June 2020, the Applicant advanced three further grounds:

(5)   the Board’s finding on his credibility was speculative and based on assumptions and not on objective assessment of evidence;

(6)   the Board failed to properly consider weight to be assigned to the COI; and

(7)   the Board failed to take into account his risk of harm emanating from his political opinion generally.

Legal principles applicable to judicial reviews

16.The role of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Ground (2): state acquiescence

17.Ground (2) is clearly inapplicable as there was no evidence that the Applicant suffered any torture, let alone at the best of law enforcement agencies or political dignities.  On the Applicant’s case, he was not around every time the police came to look for him and then he relocated himself.

Grounds (3) and (6): COI

18.Ground (6) is a duplicate of Ground (3).  The Applicant complains about inappropriate weight being given by the Board to the COI.  He complains that the Board only referred to one piece of COI, which was the The World Fact Book – Bangladesh.

19.The COI relied on by the Director and presumably by the Board are all from credible and official sources, including Country Policy and Information Note Bangladesh: Background information, including actors of protection, and internal relocation dated January 2018issued by the United Kingdom Home Office; Country Report on Human Rights Practices for 2016 of Bangladesh published by the United States Department of State; The World Fact Book – Bangladesh updated on 8 March 2018, issued by United States Central Intelligence Agency; and newspaper reports.  In fact, the Board referred to the COI and discussed with Applicant at the oral hearing.  The Board discussed about the Police Internal Oversight service in the context of corruption, police efficiency and professionalism.  The Board discussed newspaper reports about arrests and prosecution of AL leaders.  The Board accepted from the COI that AL was the ruling party in power.  It also accepted there was political violence during the election in 2014 but not in 2015, which was fatal to the Applicant’s credibility.  The Board did not refer to just one piece of COI as asserted by the Applicant. 

20.The Applicant complained that the Board failed to investigate and/or consider the COI relating to political persecution, corruption, abuse of power etc or gave reason why no weight was given to those COI.  The weight to be given to the COI is a finding of facts by the Board.  The Board did not seem to have come to a conclusion about those COI and the conflicting COI concerning government’s efforts in combating corruption and arrests of senior police and government officials for corruption.  However, the Board did discuss those COI, the Police Internal Oversight service and the arrests in the Nasirnagar incident with the Applicant. Understandably, it was not necessary for the Board to come to a definitive view what weight to be given to the conflicting COI because the Applicant did not even pass the primary hurdle of proving his factual case that his fear and risk were genuine. 

Ground (5): Board’s finding of his incredibility

21.The Applicant challenged the Board’s finding of his incredibility.  Finding of credibility of witnesses and finding of facts are matters solely within the realm of the Board.  The Board had heard the evidence, observed the witness’ demeanour and was in the best position to decide his credibility.  The Board referred to section 37ZD of the Immigration Ordinance in relation to the factors which may be taken into account as damaging the credibility of an applicant for non-refoulement protection.  It bore in mind the low standard of proof required of such a witness.  It gave generous allowance for understandable bewilderment, fright and desperateness of the Applicant.  It spent almost five pages in analysing his evidence and assessing his credibility.  The Board expressed its concerns and reasons for its assessment of the Applicant’s credibility.

22.The Applicant said that the Board’s assessment was speculation only and not based on objective facts.  The Court disagreed with the Applicant’s proposition.  Finding of credibility is often a matter of inference to be drawn from primary facts.  There is a distinction between drawing inference from facts which the Board is satisfied with and speculation which is not based on any fact.  The Board had clearly set out the basis for its finding why the Applicant was not to be believed.  The finding is neither erroneous in law, nor irrational nor made as a result of procedural unfairness.

Ground (7): harm emanating from the Applicant’s political opinion

23.The Applicant complained that the Board wrongly categorised the basis of his claim as being a grudge harboured by AL and failed to appreciate that his fear emanated from his membership of BNP and his political opinion.   Shortly put, the Board never categorised the basis of his claim as being a grudge.  The Board found that he failed to discharge the burden of proving his fears and risks. 

24.The Applicant said in his affirmation that he has recently obtained notarised copies of the certificate from the BNP to prove his case.  However, when asked what those copies were, he said he did not have the documents.  He was not specific what documents he had.  He said he was prevented from obtaining the documents because of COVID-19 and asked for time after the pandemic is over to produce those documents.  That is a lame excuse.  He said under affirmation in June last year that he had recently obtained the documents.  Now, he said he did not even know what documents he had said he had.  He demonstrated a total lack of good faith in making his affirmation.  His suggestion was only an attempt to delay this Court from making a decision. 

Grounds (1) and (4)

25.These grounds may be dealt with together.  They are directed against the finding of facts by the Board.  As pointed out earlier, the function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  Having rigorous examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds. 

Conclusion

26.Accordingly, the Court concluded that there was nothing that shows there was any error of law or procedural unfairness or irrationality in the Decision of the Board.  The Court found that the Board adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable.  The Applicant’s claim is not reasonably arguable.  There is no realistic prospect of success.  Accordingly, leave to apply for judicial review is refused.

Dated 26^thday of April 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