Hasan Mohammad Mehedi v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 2726/2018

[2021] HKCFI 3845

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2726 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 19 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

The applicant

3.The applicant is a citizen of Bangladesh. He came to Hong Kong illegally and was arrested by police on 13 April 2013. He lodged non-refoulement claim on 17 April 2013.

4.He claimed that if refouled, he would be harmed or killed by members of the Awami League (“AL”) and that he would be arrested by the Bangladeshi authorities.

5.He was a supporter of the Jamaate-e-Islami Party (“JIP”), which was a rival of the AL. Four supporters of the AL approached him and asked him to convert into AL.  One of them is called Sohag.  He refused.  They threatened to kill him if he refused. But he insisted. Soon after his refusal, those 4 people went to his house where they vandalized and attacked his parents and family members.  On another day, he met Sohag, who was one of the four people, who had attacked his family members.  Sohag took out a chopper from his house and hit his head.  He bled a lot. He then brought an iron rod and beat Sohag’s right leg until he fell down on the ground.  He then fled.  He was told that Sohag had complained to police and accused him of attempted murder.  He was on a police warrant.  He therefore moved out of his family and lived in other places in Dhaka and went to India. He finally left Bangladesh for China from where he came to Hong Kong.  Details of his story are set out in paragraph 9 of the Director’s Decision described below.

The Director’s Decision

6.The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

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

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By Notice of Decision dated 30 November 2017 (“the Director’s Decision”), the Director refused his claim for the reasons that there was no substantial reason for believing that there would be any real and substantial risk of him being harmed or killed by the members of the AL upon return to Bangladesh.  [14] The Director found that there was no evidence to show that the AL people would harm him [16]; that there were discrepancies in his evidence in relation to the facts of his case [17]; that state protection would be available to him [24]; that internal relocation was an option open to him [26] and that he failed to establish his case under BOR 2 risk, BOR 3 [32] or Persecution risk [37].

The Board’s Decision

8.The applicant appealed against the Director’s Decision. He appeared before the Board on 12 October 2018.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision.  The Board found that his alleged facts were fabrication as can be seen from paragraphs 62 and 63:

“62. Having considered the totality of the evidence before me, … I consider the documentation he has submitted, purportedly from courts and the police in Bangladesh, to be unreliable and of no probative value and I have given no weight in evidencing the truth of any aspect of the Appellant’s claimed circumstances. On the evidence before me, I do not accept that the Appellant was ever an actual or perceived supported or member of JI [JIL]. … I do not accept that he or any members of his family or household were ever targeted, threatened or harmed by supporters of the AL, including Khairul, Sohag, Shahin and/or Shihub. I do not accept that the Appellant was involved in an altercation resulting in injury to Sohag or anyone else. I consider these claims to be a fabrication. …

63. In summary, on the evidence before me, I am not satisfied that the Appellant faces a real chance of harm of any kind for any of the reason claimed in Bangladesh in the reasonably foreseeable future.”

Application for leave to apply for judicial review

10.The applicant filed Form 86 dated 3 December 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said that he wanted to review the decisions of the Board and the Director.

DISCUSSION

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13.The role of this Court is supervisory, meaning that it ensures that the Director complied with the public law requirements in coming to his Decision. The Court will not usurp his fact finding power. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13 (1) … …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

15.The Board, after an extensive examination of his evidence in the hearing, has found that he has no factual basis in support of his claim.

16.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.There is no evidence that shows that the applicant has any realistic chance of success in his intended judicial review.

CONCLUSION

18.I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

Dated the 24^th day of December 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