Bepari Sumon v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2565/2018

[2022] HKCFI 544

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2565 of 2018

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 Decision dated 19 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), his application is dealt with on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 14 August 2015 and was arrested by the police on the same date. On 16 August 2015, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by members of Bangladesh Awami League (“AL”). 

5.According to the applicant, he joined the Bangladesh Nationalist Party (“BNP”) in 2010 and BNP was the political rival with the AL.  In around 2011, when the applicant attended the BNP’s meetings and rallies, the AL would disrupt their meetings with the police and, during the chaos, the applicant was hurt and had bruises over his body.  Since the applicant was a popular figure among his group, he was asked by the AL to join them.  Upon the applicant’s refusal, the AL’s threats became aggressive in 2013.  One evening in 2013, the applicant was abducted and beaten up by the AL members.  The applicant also claimed that he participated in a national strike in 2015 but the participants were subsequently dispersed by armed AL members.  However, the applicant confirmed that he was not hurt in that incident.  Out of fear, he eventually fled to Hong Kong for protection.  Details of his claim are set out in paragraph 6 of the Director’s Decision and paragraph 18 of the Board’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 27 November 2017, the Director refused his claim for the reason that there were no substantial grounds for believing that there would be any real and substantial risk of the applicant being harmed or killed by AL people upon refoulment. The Director found that the low intensity and frequency of past ill-treatment were indicative of a small future risk of harm [12]-[23]; that state protection would be available to him [24]-[27] and that internal relocation was an option open to him [28]-[32].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  He attended the scheduled hearing on 20 September 2018.  However, the applicant chose not to answer the Board’s inquiries.  The Board remarked several matters that required clarifications from the applicant.  For example, the Board observed that the applicant was just a low tier member in the BNP; that it was impossible for him to describe so vividly about the AL members during national strike as it was crowded; that nothing happened to him for around 1.5 years before the national strike and it was implausible that the death threats would suddenly escalate [19]-[30].  The Board concluded that, in light of these inexplicable statements, the applicant simply stated that he could not remember anything [31].  Thus, the Board found that his claim was unreliable [32]. Nevertheless, it proceeded to evaluable the applicant’s claim on the applicable grounds.

9.The Board first considered the country of origin information and concluded that state protection was available to the applicant [35]-[37].  For his claim under Torture risk, the Board found that no severe pain and suffering under the definition of torture was sustained by the applicant and that the AL members were not governmental officials.  Further it was entirely a private dispute between the applicant and AL without state involvement [38]-[45].  The Board also rejected his claim under BOR2 risk as there was none of the provisions in BOR2 were engaged and the applicant failed to provide additional information in support [46]-[48].  The Board also considered that the applicant did not sustain serious injuries during the claimed abduction incident and concluded that there was no real intention to harm or kill him [51].  For these reasons, the Board also rejected his claim under BOR3 risk and Persecution risk.  In any event, the Board found that internal relocation was available to the applicant [56]-[60].  Thus, the Board dismissed the applicant’s appeal.  

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 14 November 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he simply said that he wanted to judicially review the Director’s and the Board’s decisions rejecting his claim without specifying any grounds in support of his application.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicants’ appeal. The Court will not usurp the fact finding power vested in the Director and the Board. 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).

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

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.As the applicant elected not to give evidence. The adjudicator had told him the issues that he wanted to clarify with him. The Board was entitled to assess his evidence on that basis. On the issue of whether the Board can draw adverse inference against the applicant, resulting in discrediting his evidence as a whole under the higher standards of fairness basis, there are a number of authorities for consideration.

16.The Court of Final Appeal in Li Defan & Another v HKSAR (2002) 5 HKCFAR 320 at §27, in which Lord Hoffmann NPJ cited the High Court of Australia: Weissensteiner v. The Queen (1993) 178 CLR 217 held:

“27. … in Weissensteiner …

‘…it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence.  It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence.  That is almost a truism.  It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.  …  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.’ ”

17.One must bear in mind that the above is a criminal case where the burden of proof is on the prosecution and the defendant has no burden of proof of his innocence. Therefore, the defendant is not obliged to give evidence. In the present case, the burden of proof is on the applicant and he has the obligation of proving his case to the Director and the Board.

18.The Court of Appeal in TK v Michael C Jenkins Esq  and Director of Immigration CACV 286/2011, 21 November 2012 [2013] 1 HKC, 526, CA, Hon. Cheung CJHC, Stock VP and Fok JA held:

“25. High standards of fairness certainly do not entitle the torture claimant, having stated a claim, “to simply sit back and require the Director to disprove it”. The exercise of determining whether a claim made under article 3(1) of the CAT is valid must be one of “joint endeavour”. CH v Director of Immigration [2011] 3 HKLRD 101, para 47.

19.The applicant is obligated under the Ordinance to cooperate with the Director and the Board for the assessment of his claim. See section 37ZA (1)(a).[1] As the law imposes an obligation on him to make prompt and full disclosure of all material facts in support of the claim, his refusal to do so is in contravention of the statutory provision and he must bear the consequences. It is not difficult to understand the consequence of the Board not believing his evidence if he refused to answer the questions put by the Board to him. High standards of fairness gives no exemption to the applicant for the compliance of the Ordinance.

20.I therefore consider that it is legitimate for the Board to draw adverse inference against the applicant’s credibility on the facts of his case.

21.The applicant does not have any valid ground to challenge the Board’s Decision.

22.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.

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

CONCLUSION

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

Dated the 1^st day of March 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