Sayal Mohammad Sujan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2714/2018

[2021] HKCFI 1799

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2714 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.This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 22 November 2018 (the “Decision”).

2.The Applicant is a Bangladeshi national.  He sneaked into Hong Kong from Shenzhen on 17 November 2012.  He was arrested by the police and referred to the Immigration Department.  On 22 November 2012, he applied for a non-refoulement protection claiming that he will be harmed or killed by members of the Awami League (“AL”) if returned to Bangladesh because of his refusal to stop working for the Bangladesh Nationalist Party (“BNP”).

3.In due course, his non-refoulement claims were 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 10 November 2017, the Director rejected his claims.  His appeal to the Board against the decision in the Notice was dismissed by the Decision of the Board. 

The Applicant’s case

4.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. 

5.The Applicant’s whole family were supporters of BNP.  He is an ordinary member and had supported BNP since 2001.  He was responsible for casting vote, persuading people to support BNP and posting posters.  He reported to his leader Osman.  His participation in political activities and role in the BNP was low.

6.In around 1995, AL won the election.  It took over the power from BNP as the ruling party.  The local leader of AL was Siddik. 

7.One day in February 2009, while he was posting posters for BNP, eight AL people approached him. They told him to stop working for BNP and threatened there would be serious consequences if he did not listen to them.

8.In April 2009, the group approached the Applicant.  They beat him with sticks and fists.  He suffered fractures on his right leg and bruises on his head.  He did not complain to the police.

9.After the assault, on Osman’s advice the Applicant stay in his uncle’s home in Chittagong Road in Narayanganj until 15 November 2012 when he left Bangladesh.  During those three and half years, nothing eventual happened to the Applicant.  He was not located by the AL people or Siddik.

The finding of the Board

10.The Board did not accept the Applicant’s evidence that the AL people are so powerful to be able to locate him anywhere in Bangladesh.  In view of the low political profile and role played by the Applicant in BNP, the Board did not believe that the AL people will spend great effort and resources to locate him and harm him, especially by the time of the appeal, the incident complained of was almost ten years ago.  The Board found no evidence to support a finding that there is a foreseeable, real, personal and present risk that the Applicant may be subjected to any kind of severe pain and suffering or even death.  It also found the AL people are not public officers.  On these findings, there is no factual basis to support the Applicant’s claim for protection on any of the four applicable grounds.

11.Though the Board accepted that corruption is pervasive in Bangladesh, it also accepted that police effectiveness varied from district to district.  Bangladesh being a vast country, the Board was satisfied that internal relocation is available to prevent the harm.

Grounds for judicial review

12.The Applicant did not put forward any grounds in his notice of application for leave to apply for judicial review. 

13.He was invited by letter from this Court dated 24 May 2021 to file written submissions which he would like to make.  He did not file any. 

14.At the hearing, repeated attempts were made to ascertain from him any possible basis for judicial review of the Decision.  He only repeated that his case is true; that the immigration officer did not properly consider his case; and that his life would be in danger, if refouled to Bangladesh.  These are statements of facts which had been considered by the Board.  Other than expressing his disagreement with the Decision, the statements contain no criticism of the Decision.

Disposition

15.The function of the court in judicial review is not to re-assess the non-refoulement claims 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].  Thus, the Court focussed its attention on possible criticism of the Decision on the basis of error of law, procedural unfairness unreasonableness and irrationality.

16.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 law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; 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 claims for non-refoulement protection under any of the four applicable grounds.  This conclusion was further supported by availability of internal relocation.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks. 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.  There are no such vitiating elements in the Decision.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

Conclusion

17.For the above reasons, leave to apply for judicial review was refused.

Dated the 22^ndday of June 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 para 14(1)