Alan @ Alan, Safiqul Islam v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2237/2018

[2021] HKCFI 1341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2237 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 seeks leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 17 August 2018 (the “Decision”).   

2.The Applicant is a Bangladesh national.  He left Bangladesh on 11 November 2013 for China where he stayed for seven months.  He entered Hong Kong from the Mainland on 20 July 2014.  He surrendered to the Immigration Department on 11 August 2014 and lodged a non-refoulement claim on 24 September 2014, claiming that he was at risk of being killed by his creditors.

3.In due course, his non-refoulement claim was assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By a Notice of Decision dated 29 May 2017, the Director rejected his application for non-refoulement protection.  The Applicant appealed to the Board on 6 June 2017. His appeal was dismissed by the Board on 17 August 2018.

4.On 15 October 2018, he applied for leave to apply for judicial review of the Decision of the Board.  He did not appear at the first scheduled date of hearing.  He appeared at the re-scheduled hearing and explained that he had not received the notice of hearing, despite his confirmation that his address was correct.

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. 

6.The Applicant was born in January 1984.  He used to work as a general worker in two brick kiln factories named Dulal Brick Kiln Factory (“Dulal Brick”) and Jamuna Brick Kiln Factory (“Jamuna Brick”) which were respectively owned by Nasir and Suman.  In 2010, he subcontracted work from these two factories.  Nasir and Suman advanced contract fees to him for paying his workers.  He had to compensate Nasir and Suman if his production fell short of target. 

7.In 2012, the Applicant’s production fell short of the target.  Nasir and Suman demanded compensation of 300,000 takas and 500,000 taka respectively.  He asked for time to pay until 2013.

8.In September 2012, he needed to recruit workers to make bricks.  Suman paid him 1.1 million takas.  Nasir refused to pay and instead demanded that he pay the compensation of 300,000 takas within two years.  As Suman’s payment was not enough to pay for the number of workers required, the Applicant borrowed 100,000 takas each from two loan sharks, named Hanif and Selim.  Hanif and Selim were closely associated with the Awami League Party which was the ruling political party in Bangladesh.  They were influential in their own village and could control the police.

9.In 2013, the Applicant could not meet the target set by Suman.  Suman threatened him by phone calls saying that he suffered a total loss of 1.3 million takas in the year of 2012 and 2013.  In July 2013, Suman called again and threatened that he had to pay 1.3 million takas immediately.  The Applicant asked for time to pay and said he would try to sell his house and all properties to repay him. Finally, Suman agreed to give him a month to pay. 

10.On the following day, the Applicant met Suman’s brothers, Monir and Kasem.  The brothers threatened to kill the Applicant and said that they would not let the Applicant’s family stay alive if he could not pay within a month.  The Applicant dared not report to the police because Monir and Kasem were powerful and closely related to the police.

11.On the following day, the Applicant fled to Banani, Mailbag in Dhaka.  He stayed in a guest house for around ten days in August 2013.  During that period, he received threatening phone calls from Suman.

12.In September 2013, the Applicant relocated to Chittagong for more than a month. Suman and his brothers could not locate him in Chittagong.  In November 2013, his agent advised him to come to Hong Kong to seek protection.  Then, he went back to Dhaka.  From there he flew to China and then sneaked into Hong Kong.

13.The Applicant maintained contact with his family.  He was told that Suman and the two loan sharks kept coming to his home once or twice a month to locate him. They told his family to sell the house or other properties to repay the debt, otherwise they would suffer the consequence.

14.The Applicant feared that he will be killed by Suman and Nasir if he returned to Bangladesh.  He did not believe the police would protect him as Suman and Nasir were closely related to the police and had strong political background.   He confirmed to the Board that the loan sharks were no longer a problem.

The finding of the Board

15.The Board did not consider the Applicant a witness of truth, but nevertheless assessed his claims on the basis that what he asserted were all true.  The Applicant said that he had no problem with the loan sharks, but feared that he will be killed, most probably, by Suman.  The Board noted that the Applicant only received verbal threats to repay debts he incurred to brick kiln owners.  He claimed that the brick kiln owners were aligned to Awami League, the ruling party in Bangladesh, and were socially affiliated with the local police.  On his evidence, the Board was not satisfied that the Applicant had discharged his burden of establishing that he faces a real risk of harm if he were refouled to Bangladesh.  Furthermore, the Board found that he could safely relocate to Dhaka or Chittagong.  The Board also gave specific reasons for dismissing the Applicant’s claims under the four applicable grounds.  These are as follows.

16.In respect of the Persecution Risk ground, one of the requirements which a claimant has to prove to establish this claim is a well-founded fear of being persecuted for one or more of the five reasons set out in the Convention Relating to the Status of Refugees, ie by reasons of race, religion, nationality, membership of a particular social group or political opinion (the “Convention reasons”).  Quite apart from his failure in proving his well-founded fear of harm, the Board found that the feared harm was not for one or more of the five Convention reasons. 

17.For the same reason, the Board was of the view that there is no real risk that the Applicant will be arbitrarily deprived of his life if he were refouled to Bangladesh now and in the reasonably foreseeable future. 

18.Apart from his failure in proving his well-founded fear of harm, the Board also found he had failed to show the alleged harm he would face would attain a minimum level of severity to qualify for protection under BOR 3 Risk ground.

19.Likewise, the Board found not only was there no real risk that the Applicant will face torture within the meaning of section 37U(1) of the Immigration Ordinance, there is clearly no element of state agency or state acquiescence in the torture, if inflicted.

Grounds of the Application

20.In his affirmation filed in support of his application the Applicant advanced two grounds for his application.  First, he asserted that he needed time to submit supporting documents but the immigration officer disregarded his request. Second, he alleged that his life would be in danger because of threats from his enemies.

21.At the hearing, the Court ascertained from the Applicant what documents he would have submitted.  He confirmed that the documents were contracts relating to his brick production.  Those documents would support his case of having contracted with Suman and Nasir about producing bricks, the production targets, labour costs, etc.  However, as the Board proceeded on the basis that what the Applicant asserted were all true, those contracts are unnecessary and would not have advanced his case any further.

22.As for his second ground, it is in effect a challenge of the Board’s finding of facts that he would not face any real risk of harm if he were refouled to Bangladesh.  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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].

23.Though the Board did not find the Applicant credible, it nevertheless proceeded on the basis of the entirety of his evidence.  An applicant has to prove not only that his fears and risks are genuine, but also they fall within the criteria set out under the four applicable grounds.   On the basis of his evidence, the Board was not satisfied that the Applicant has proved his fears and risks are genuine and that those fears and risks fall within the criteria.  It found that the Applicant had failed to discharge the burden of proving his fears and risks and his entitlement to non-refoulement protection on all applicable grounds.   The Board gave reasons for its Decision.   These are findings of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.

24.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the burden of proof and standard of proof, the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  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.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success.  Accordingly, leave to apply for judicial review is refused.

Dated the 11^th day of May 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

[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

[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”)

[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

[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

[5]  [2018] HKCA 524 at para14(1)