Khaleque v. Toture Claims Appeal Board/ Non Refoulement Claims Pettion Office

HCAL 2588/2018

[2021] HKCFI 1845

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2588 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 24 September 2018 (the “Decision”). 

2.The Applicant is a Bangladeshi national.  He sneaked into Hong Kong from Shenzhen on 21 December 2015 and surrendered to the Immigration Department the next day.   On 11 November 2016, he lodged a non-refoulement protection application claiming that he will be harmed or killed by members of the Awami League (“AL”) if returned to Bangladesh because of his political opinion and a false charge of murder had been laid against him.

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 27 October 2017, the Director of Immigration (the “Director”) rejected his claims (the “Notice”).  His appeal to the Board against the decision in the Notice was dismissed by the Board’s Decision dated 24 September 2018.

4.He now seeks leave to apply for judicial review of the Decision of the Board.  He requested an oral hearing.  He had been invited by letter dated 24 April,  5 May 2020 and 24 May 2021 to file written submissions.  He did not file any.  He was given a notice of the hearing scheduled for him on 15 June 2021.  He did not appear at the scheduled hearing.  He did not answer the telephone made to his mobile phone.  The notice has not been returned.  Having considered the documents, the Court considered this was an appropriate case for paper determination and made the following determination accordingly.

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 (“NCF”) which was prepared by him with assistance of the Duty Lawyer Service. 

6.In around 1996, the Applicant joined the Islami Chhatra Shibir (“CS”), the student wing of Jamaat-e-Islami (“JEI”), as an ordinary member.  His father is a member of JEI and donated money to JEI and attended its meetings.  In 2003, his father gave part of his business premises to JEI.  JEI held party meetings and made decisions there.

7.Towards the end of 2005, while the Applicant was returning home one night after work, he was attacked by five members of AL armed with knives and da (the “First Assault”).

8.He told a senior member of JEI about the assault.  About two to three weeks later, in the absence of the Applicant, a meeting was held between the Applicant’s family members, some JEI leaders and some AL leaders.  At the meeting, the AL leaders threatened to harm the Applicant’s family if a police report was made about the First Assault. To avoid further harm, the Applicant’s family arranged a job for him in United Arab Emirates in February 2007.

9.The Applicant worked in United Arab Emirates.  He returned to Bangladesh between April and June 2010 and November 2012 to April 2013.  During his second return, he married and invited AL leaders and members, including the five assailants during the First Assault.

10.Thinking that the threat and harm had diminished, the Applicant returned to Bangladesh in October 2014 to take over the operation of his father’s business.  He took part in political activities for JEI and became a senior secretary of JEI for around four to five months.

11.In around 13 June 2015, the same five assailants and another five to seven men came to the Applicant’s business place.  They asked the Applicant to quit JEI and join AL.  He refused.  Then, they attempted to extort BDT 500,000 from him for being allowed to continue to operate his business.  He counter-offered BDT 5,000.  Then the assailants assaulted him (the “Second Assault”).  The assault stopped when some bystanders intervened.  The assailants threatened to kill the Applicant if he did not join AL.

12.On 28 June 2015, while the Applicant was sleeping in his business premises, he woke up and found it was on fire.  He suffered serious burns and collapsed unconscious (the “Third Assault”).  He was hospitalised for around two months.  He believed that AL supporters set fire to his business premises.  His father attempted to make a complaint to the police.  The police refused to accept the complaint and instead threatened the father if he insisted to do so.

13.After he was discharged from hospital, the Applicant hid at the home of his grandmother.  About ten days later, he was told by his parents, wife and daughter that a false accusation of murder had been filed against him and six co-accused.  He believed the case was filed because he refused to cooperate with AL.  On 12 December 2015, the Applicant fled Bangladesh and flew to Guangzhou.  Then he sneaked into Hong Kong.

14.While he was in Hong Kong, he was told that the AL supporters are still looking for him.  He feared if he is refouled to Bangladesh, he will be killed by the AL supporters.

15.At the hearing, he said he had unspecified supporting evidence in Bangladesh but he had no friends to contact in Bangladesh to send the evidence to him.

The finding of the Board

16.The Board identified some significant inconsistencies between the Applicant’s evidence in his NCF and that he gave before the Board.  First, the Applicant’s allegation that he was ‘given the post’ of member due to his contributions to JEI is inconsistent with the JEI Constitution which provided that there is a vetting process and requirements to become a member which is started by someone applying to be a member.  The Applicant said he did not hold any position in JEI apart from being a member.  That is inconsistent with his assertion in the NCF that he was a senior secretary. 

17.Second, the Applicant’s account of the First Assault given before the Board is significantly different from that given in the NCF.  He told the Board that he was assaulted because he refused to join AL.  More importantly, he said it was the police who advised his father and uncle not to make a complaint to the police or things would get worse and not that the AL leaders threatened to harm his family if they reported to the police.

18.Third, his account of the Second Assault was also problematic.  He told the Board that the assailants came to his business premises on three occasions and not one single time as he stated in the NCF.  He said nothing about any assault during the three occasions.  The number of people who came numbered twenty to twenty-five which was double that given in the NCF.

19.Fourth, the Applicant told the Board that nothing happened to him after the Third Assault.  He mentioned nothing about the false murder charge.  He explained that he forgot.

20.The Board discussed its concerns about the inconsistencies with the Applicant but was not satisfied with his explanations.  The Board considered the inconsistencies were so significant that they undermined his credibility.  The Board found he was not a credible witness and rejected his evidence.  The Board rejected his evidence that he was a member of CS or JEI, that he held any position in CS or JEI and attended CS or JEI activities.  The Board rejected his evidence about the First Assault, the Second Assault, the Third Assault and the false murder charge. Practically, the Board rejected his evidence almost in its entirely.  The Board concluded that he fabricated his claims so as to create a basis upon which to apply for non-refoulement.  The Board concluded that the Applicant would not face any real risk of proscribed harm from the assailants, supporters of AL and/or the Bangladesh authorities if refouled to Bangladesh.  There is no factual basis to support his claim for non-refoulement protection on any of the four applicable grounds.

Grounds for judicial review

21.In his supporting affirmation filed on 19 November 2018, the Applicant claimed that the AL terrorists wanted to kill him and annexed the Decision and the Notice as supporting evidence.  He gave no specific grounds for his leave application.  Given the absence of specific grounds, the Court can only focus on possible complaints of error of law, procedural unfairness, unreasonableness, irrationality and breach of the high standard of care owed to an unrepresented claimant when considering his application.

22.His affirmation, at the highest, is a challenge of the Board’s findings of facts. 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, unreasonableness and irrationality.

23.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 claims 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. 

Conclusion

25.For the above reasons, leave to apply for judicial review is refused.

Dated the 25^th day 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)