Ahmmed Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 544/2019

[2022] HKCFI 124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 544 of 2019

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 (Order by Deputy High Court Judge To):

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 18 February 2019 (the “Decision”) and “the decision made on unknown date but notice on of 29 June 2018”.  The Applicant has not requested an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

2.The Applicant sneaked into Hong Kong by boat on 5 February 2017 and surrendered to the Immigration Department on 8 February 2017.  He lodged a claim for non-refoulement protection by two statements dated 18 and 26 April 2017.  In due course, his non-refoulement claims were assessed by the Immigration Department on all four applicable grounds available under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By a Notice of Decision dated 21 June 2018, the Director of Immigration (the “Director”) rejected his claims (the “Notice”).  The Applicant appealed to the Board against the decision of the Director in the Notice, but his appeal was dismissed by the Decision of the Board. 

3.It is not known which is “the decision made on unknown date” he is seeking a judicial review to and by whom it was made. Presumably, he meant the decision of in the Director’s Notice dated 21 June 2018 which he came to have notice of on 29 June 2018.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures.  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[5].  For the benefit of the Applicant, the Court treated his complaints against the Director as if they were directed at the Board as well.  

The Applicant’s case

4.The following account of the Applicant’s case is mainly based on the information in his two statements, the non-refoulement claim form and the record of the screening interview held by the Immigration Department. 

5.The Applicant was born in Bangladesh and is now 46 years of age.  He is married and has two children aged 12 and 10.  His wife and children are in Bangladesh.  He is a supporter of Bangladesh Jamaat-E-Islam Party (“JEI”) and its Organizing Secretary at the material time.

6.In essence, his case is that he had involved in fights with a rival and ruling political party in Bangladesh, Alwami Leaque (AL) and was being persecuted because of his role as the Organizing Secretary of JEI as evidenced by three attacks or attempted attacks on him. 

7.First, on an evening in September 2015, a group of about 8 AL members broke into his home and beat him violently with fists and wooden sticks until his wife and sister in law promised that he would leave the village.  Before the assailants left, they stared at his wife and warned her that if he did not leave in a week, they would definitely kill him.  He was hospitalised for four days.  His left arm was broken and back injured.

8.Second, after his discharge from hospital, he went to live in his relative’s place.  After a few days, his assailants discovered his whereabouts and went to look for him.  He was able to escape before they came.

9.Third, the Applicant went to Dhaka to avoid pursue by AL members.  However, not before long, he was discovered by AL members at the local market.  They attempted to attack him, but he managed to hide himself and avoided the attack.  A few days later, his wife came to Dhaka and told him that the police had been to his home to look for him and said that they had a warrant for his arrest.

The finding of the Board

10.The Board discovered two material inconsistencies between his evidence in his statements and his evidence given at the oral hearing before the Board. 

11.First, in the formal grounds of appeal/petition in the non-refoulement claim form, which was prepared by the Duty Lawyer on his behalf, the Applicant said that he believed the police was going to arrest him because he had stabbed an AL member.  At the hearing before the Board, the Applicant said that was untrue and denied having said so to the Duty Lawyer.  The Board rejected his explanation that the inconsistency was caused by a misunderstanding and did not believe that the Duty Lawyer would have accidentally invented such kind of details for the Applicant.  The Board found the Applicant had stabbed an AL member.

12.Second, in his first statement dated 18 April 2017, the Applicant wrote that during the second incident, seven or eight AL members went into his home, dragged him to the outside and beat him and not that his relative managed to sneak him out of his relative’s home where he was hiding and escaped an attack. The Board did not accept the Applicant’s explanation that the inconsistency was caused by a miscommunication between him and his friend who prepared the statement for him.

13.In addition, the Board noted that the Applicant had said that when his wife went to seek police assistance during one of the incidents, she learned that a warrant had been issued for his arrest.  He said it would be pointless to seek police assistance which would only lead to his arrest and place him in total disposal of the AL members.  He asserted that the warrant was issued on false accusation by his enemies.

14.Among the bundle of documents produced by the Applicant at the oral hearing before the Board are two arrest warrants and a judgment.  One warrant was issued by the Chief Metropolitan Magistrate Court of Dhaka on 13 January 2014 because the Applicant had absconded trial in relation to the riot on 15 June 2013.  The second warrant was issued on 28 September 2018 after his conviction and sentence were passed in his absence.  In a court judgment dated 28 January 2018 in which the Applicant was named as the second accused, he was convicted and sentenced to life imprisonment along with three other accused after trial in their absence and a warrant for his arrest was issued by the Metropolitan Jessica Judge of Dhaka. Accordingly, the Board found the Applicant is a fugitive from justice when he arrived Hong Kong on 5 February 2017.  These documents contradicted the Applicant’s explanation about the inconsistencies relating to the three incidents of attacks on him. 

15.Having considered the evidence in its totality, the Board seemingly proceeded on the basis that the three incidents had occurred but did not accept the three incidents as evidence of persecution by AL against him.  Rather, it found the three incidents, if truly accurate, were reactions of AL to the Applicant’s hostility to them.  The Board believed that the Applicant in his position as the Organizing Secretary of JEI in 2008 should not have any well-founded fear of persecution arising out of the three incidents.  Instead, the Board found by inference that the Applicant was in fear of the warrants of arrest issued against him committing him to life imprisonment.  The Board was satisfied from the Applicant’s own admission in the non-refoulement claim form that he had stabbed an AL member and from the documents (particularly the warrants and judgment) he produced at the oral hearing that there was due process of judicial proceedings against the Applicant and the others which took over five years from the date of the riot to the date of judgment.  The Board found the Applicant is in fact a fugitive from justice and could not be regarded as a refugee with well-founded fear of persecution and rejected his evidence that his fear arose out of the three incidents of attack or attempted attack.

16.Having directed its mind to the USM and the applicable legal principles, the Board concluded that the Applicant failed to prove that he qualified for non-refoulement protection on any of the applicable grounds under the USM and dismissed his appeal.

The applicable legal principles  

17.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[6].  Thus, the Court focussed its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

Grounds for judicial review

18.The Applicant did not put forward any grounds in his notice of application for leave to apply for judicial review.  In his supporting affirmation filed together with his application, he exhibited the Decision and the Notice and affirmed that they are true.  In response to the Court’s request for all supporting documents, he filed a nine-page statement setting out the following three grounds in support of his application:

(1)   the Board was unreasonable in making speculative findings in assessing his risks;

(2)   the Board failed to properly consider and/or assign weight to the Country of Origin Information and failed to discharge its duty of joint endeavour; and

(3)   the Board made mistakes of fact and/or failed to take a relevant factor into consideration, namely that his risk of harm emanates from his political opinion generally. 

Ground (1)

19.The Applicant quoted some legal principles and authorities relating to assessment of credibility which are basically correct; such as identifying material facts going to the core of the claim, taking into account reasonableness, overall consistency and coherence of the allegation and the context of the surrounding circumstances including political environment. There is nothing in the Decision showing that the Board had departed from these principles.

20.The Applicant submitted at paragraph 9 of his statement:

“With regard to the ‘1st incident’ whereby me and my friends were attached (sic) by a number of AL members, the Adjudicator found at 26 that:

‘That my group could manage to escape while being outnumbered shows the AL had no intention to kill or harm seriously to me, especially when one of the attackers was armed with a pistol and had it drawn out to shoot.  The had ample opportunity of shooting me …  Surely enough if they intended to kill or harm seriously for me.  They could have done so in that incident or could have chosen a better place and time to do it more easily when me was not in the company of friends.’”

21.In paragraph 10, the Applicant submitted that the Board had accepted the facts as stated in paragraph 26 of the Decision and had raised no issue of credibility.

22.What is alleged to have been said in paragraph 26 of the Decision is totally alien to the Decision.  The Applicant’s case about the first incident as summarised in paragraph 5 above is that eight AL members broke into his home and assaulted him in his home.  There was no mention of a drawn pistol.   Paragraph 26 of the Decision is about the injury to the Applicant’s back allegedly caused during the attack in the first incident.  Most probably, the assertions in paragraph 9 of the statement were copied from another application which had no bearing whatever to the Applicant’s.

23.In the remaining paragraphs under this head, the Applicant complained that the Board engaged in speculation.  A distinction has to be drawn between speculation based on no evidence but subjective belief or opinion and inference drawn from basic facts which a decision maker is satisfied of.  The Board quoted the Applicant’s case, referred to inconsistencies in his evidence and found that the Applicant’s case was inherently incredible.  It then referred to his own admission in the non-refoulement claim form that he had stabbed an AL member and the documents he produced at the oral hearing, including a court judgment and warrants and then inferred from the totality of evidence that the Applicant was escaping from justice by coming to Hong Kong.  The Board was entitled to make finding of facts and draw inference of fact from proven primary facts.  There was ample evidence for the Board to draw the inference.  That was not speculation.

24.As stated above, 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.  There is ample evidence to enable the Board to make the finding of fact and draw inference of facts as it did. In essence, this ground is an attack on the Board’s finding of fact which is exclusively within its province.  The Board had referred to the applicable legal principles and correctly applied them to the evidence.  It committed no error of law.  There is no substance in this ground.

Ground (2)

25.The Applicant complained that the Board failed to properly consider and/or assign weight to the Country of Origin Information and failed to discharge its duty of joint endeavour.  He quoted some legal principles relating to the application of Country of Origin Information and the duty of joint endeavour which the Court had no dispute with.  On the facts of this case, the Applicant having failed to prove his fear which is the fundamental basis of his non-refoulement claim, Country of Origin Information had little relevance. 

26.The Board did refer to Country of Origin Information in paragraphs 36 and 56.  In relation to the Applicant’s assertion that AL members could locate him even if he moved to other part of Bangladesh, the Board assumed that he treated AL members and police to be one.  In paragraph 36, the Board referred to the Country of Origin Information and satisfied itself that there was no information supporting such an assumption. Internal relocation is irrelevant if the Applicant could not even prove the threats in the first place.

27.The Applicant explained that the warrants and judgment were issued based on a false charge.  In paragraph 56, the Board dealt with that evidence.  It satisfied itself that there was not a scintilla of evidence coming from the Applicant or the Country of Origin Information to the effect that it was a widespread policy of the AL government to issue warrants and judgments, based on false charges.  Instead, on his own admission which he denied at the oral hearing, the Applicant said he had stabbed an AL member. The Board did not find his denial credible and found his admission to be true. On the totality of the evidence, in particular that admission, the Court was satisfied that there was due judicial process leading to issue of the warrants and the judgment.  The Applicant’s assertion about false charge was a base assertion unsupported by evidence.  The Board nevertheless took the depth of examining the Country of Origin Information, only to find that there was no such policy of the AL government.  The suggestion that the government manipulated the judiciary is a serious one.  The Applicant has not adduced the slightest supporting evidence other than a mere allegation of lack of joint endeavour in researching for the information.

28.The Court found there is no substance in this ground.

Ground (3)

29.The Applicant complained that the Board erred in its finding of fact and/or failed to take a relevant factor into consideration, namely that his risk of harm emanated from his political opinion generally.  He submitted in paragraph 29 of his statement:

“From 13, 23, 28 and 33 of the Decision, it is evident that the Adjudicator considered the basis of Claim to be the ‘grudge’ harboured by AL and according throughout the Decision he consistently attributes my fear solely to the incident of the 2001 and 2014 and 2019 election.”

30.Paragraph 13 is statement that the Applicant’s place of residence will have some bearing on the three incidents.  Paragraph 23 is a replication of the questions raised by the immigration officer and answers given by the Applicant at the screening interview about his injuries suffered during the first incident.  Paragraph 28 is a statement by the Board that it will deal with the second mistake in the Applicant’s evidence relating to the second incident.  Paragraph 33 is a quote from the answers given by the Applicant during the screening interview about his wife learning about the warrant of arrest.  These paragraphs have no bearing to the complaint as set out in Ground (3) and the basis of the complaint as asserted in paragraph 29 of his statement.  It also referred to incidents in 2001 and the 2014 and 2019 elections which never surfaced in the Applicant’s claims.  Obviously, these assertions were copied from another application which have no relevance to this one. 

31.Lastly, the Applicant also submitted copies of two certificates from JEI certifying that he is a person of good character. These certificates are not relevant to the issues in question.

32.The Court found there is no substance in these grounds of application.

Conclusion

33.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; identified the issues; 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.  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 finding 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.  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.  Accordingly, leave to apply for judicial review was refused.

Dated 12^th day of January 2022.

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 549

[6] [2018] HKCA 524 para 14(1)