Masun Md Sohidul Islam v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 814/2019

[2021] HKCFI 3861

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 814 of 2019

BETWEEN

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 Decisions dated 8 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). 

2.The applicant requested a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I have therefore fixed a hearing for him.  However, the applicant was absent without prior notice to the Court.  I shall therefore deal with his application on paper.

The applicant

3.The applicant is a citizen of Bangladesh.  He surrendered himself to the Immigration Department on 20 July 2015.  He claimed that he had entered illegally from the Mainland on 29 June 2015.  By letter dated 3 December 2015, he lodged non-refoulement claim.

4.The applicant claimed that, if refouled, he would be tortured, ill-treated and persecuted by his uncle Dulai Miah and his followers from the Awami League (“AL”) because he refused to convert from Bangladesh Nationalist Party to join the AL.  In 2010, his uncle brought 20 to 30 AL people to go to his house to demand his father and him to convert to AL.  They refused.  His uncle and his people, who were armed with guns, knives and wooden sticks vandalized his house and hit his father and him.  He managed to escape.  His father then went to Malaysia for business.  In 2014, his uncle, together with 20 to 30 AL people went to his house again.  His uncle demanded him to assign the house and two shops to him.  He refused.  His uncle slapped his mother’s face and his face.  They threatened to kill the other siblings.  He managed to escaped and lived in his friend’s place.  Upon his friend’s advice, he left Bangladesh for China, from where, he entered Hong Kong illegally.  He had information that his family, including his father in Malaysia had been killed by his uncle.

The Director’s Decision

5.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”).

6.By Notice of Decision dated 8 August 2018, the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk of him being harmed or killed if he returned to Bangladesh was assessed to be low [11]; that state protection would be available to him [17-19] and that internal relocation was an option open to him [20-25].

The Board’s Decision

7.He appealed against the Director’s Decision to the Board and attended a hearing on 28 December 2018. 

8.The Board explained the purpose of the oral hearing, but the applicant said that he did not want to give evidence.  However, the adjudicator had asked him a couple of questions to clarify his claim. The Board concluded that there was no merit in his claim as it was only a family dispute and the applicant had exaggerated the incidents.  See paragraph 21 of the Board’s Decision.

Application for leave to apply for judicial review

9.The applicant filed Form 86 on 25 March 2019 for leave to apply for judicial review of the Board’s Decision.

10.In his affirmation in support of his application, he set out various grounds in support of his application. I shall summarize his grounds as follows:

(i)     Misdirection in law: the adjudicator wrong considered that the applicant had to have experienced torture in the past in order to establish substantial ground to believe that there was a risk of torture in the future;

(ii)     Procedural impropriety / unfairness: the adjudicator had not properly considered the country of origin information (“COI”) in relation to his case and generally;the adjudicator had failed to call for psychological and psychiatric evaluation and reports and the adjudicator had applied the incorrect standard of proof in his Decision; and

(iii)     Irrationality: the adjudicator had cherry picked the COI to his prejudice; failed to find as fact whether there exists in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights;the adjudicator had failed to consider extended meaning of state protection; the adjudicator had failed to take in consideration relevant facts or had taken irrelevant facts.

DISCUSSION

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

12.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.”

13.His grounds in support of his application are sweeping. Many of the grounds are irrelevant to his case. Most of them are his opinions without any evidence in support of them. Ground 10 (i) is simply not the fact as the adjudicator had never mentioned this reason in his Decision. Ground 10 (ii) is his opinion. He had never raised any mental issues in the hearing before the Board. He refused to answer questions. Ground 10 (iii) is inconsistent with the fact that he refused to answer questions raised by the Board.

14.I am aware of the recent decision of the Court of Appeal in Re Masud MD [2021] HKCA 1449, 7 October 2021.

15.I consider that I am bound by the decisions of the Court of Final Appeal’s case of Li Defan and Fan Ying Chao v HKSAR (2002) 5 HKCFA 320.

16.The above is a criminal case tried by the District Court. The defendants were charged with bribery offence.  Both of them had given video evidence at the ICAC.  They elected not to give evidence at the trial.  The trial judge drew adverse inference against their explanation in the video conference and convicted them of the charge.  Before the Court of Final Appeal, the issue was whether the judge erred in law in saying that he could more readily draw inferences against the accused because they had not given evidence.  One must bear in mind that for criminal matter, the burden is on the prosecution to prove its case.  The defendant has no burden of proof of his innocence.  In this matter, the burden is on the applicant to prove his case to the Board.

17.On the question whether the court can draw adverse inference against the accused who elected not to give evidence, Lord Hoffmann said:

“27. … It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account, and they may take it into account only for the purpose of evaluating that evidence. The fact that the accused's failure to give evidence may have this consequence is something which, no doubt, an accused should consider in determining whether to exercise the right to silence ... But it is not to deny the right; it is merely to recognize that the jury cannot, and cannot be required to, shut their eyes to the consequences of exercising the right.”

18.As to the proper approach for a judge alone trial, Lord Hoffmann was of the opinion that a single judge might be in a better position to assess the evidence than a jury and a common sense approach should be adopted:

“31. It [is] my opinion it should equally be accepted that unless there are indications to the contrary, the judge is aware that the accused is not obliged to give evidence and that failure to give evidence is not an admission of guilt. If, therefore, the judge appears to have, or says he has, used the failure of the accused to give evidence as an element in the reasoning by which he arrived at a finding of guilt, the only question is whether on the particular facts of the case such reasoning was legitimate. As Lord Diplock remarked in Haw Tua Tau v. Public Prosecutor [1982] AC 136, it is hard to say more than that this is a matter of common sense.”

19.The adjudicator of the Board had explained the purpose of the oral hearing and he had also asked him questions on some of the issues. Although there is no information as to how he had answered the questions, it is quite apparent that the adjudicator had obtained evidence from the applicant before he came to his conclusion. The Board is entitled to have doubts on the applicant’s evidence on the facts of his case.

20.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.

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

CONCLUSION

22.I therefore refuse to extend time for the applicant to apply for his intended judicial review.   Accordingly, I dismiss his application.

Dated the 29^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