Shah Alam Miah v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 252/2019

[2022] HKCFI 965

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 252 of 2019

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/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 14 January 2019 (the “Decision”) and the decision of the Director of Immigration (the “Director”).  He did not identify the decision of the Director complained of but it must refer to the notice of decision dated 16 January 2018 (the “Notice”) issued by the Director, which was the subject matter of the Decision.

2.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  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. For the benefit of the Applicant, the Court treated his complaints against the Director as if they were directed at the Board also.  

3.The Applicant is a national of Bangladesh.  He had a long and complicated immigration history in Hong Kong.  He arrived in Hong Kong in September 2001 and overstayed his visa until he was arrested in January 2008.  He made his first non-refoulement claim (the “CAT Claim”) under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “CAT”).  The CAT claim was rejected by the Director.  His petition to the Board was refused on 13 March 2012.  On 29 April 2017 he lodged his second claim under the Unified Screening Mechanism (the “USM”) then became available (the “USM Claim”), ie the current claim.   The immigration officer assessed his USM Claim on the basis of BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4], but not the Torture Risk[5] as he considered the Torture Risk ground had been finally determined under the CAT Claim.  By the Notice dated 16 January 2018, the Director rejected his USM Claim.  He appealed against the decision in the Notice.  The Board disagreed with the immigration officer’s approach in relation to the Torture Risk ground under the USM Claim and considered that ground as well.  Thus all four applicable grounds under the USM were considered by the Board. However, the Board dismissed his appeal.  He now seeks leave to apply for judicial review of that Decision. 

4.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.

The Applicant’s case

5.The following is a summary of the Applicant’s case mainly based on the information in the questionnaire provided by the Applicant (the “Questionnaire”) and his screening interview in relation to the CAT Claim (the “CAT Interview”) and the non-refoulement claim form (“NCF”) and his screening interview in relation to the USM Claim (the “USM Interview”).  The Questionnaire and NCF were prepared by the Applicant with the assistance of the Duty Lawyer Service.  He was legally represented in the two screening interviews.

6.The Applicant was from Chittagong Division of Bangladesh.  He used to help his father run a wholesale business in Dhaka Division.  The business was successful.  He used to hang out with the son (“S”) of the then Commissioner of the Applicant’s Ward and a neighbouring Ward in Dhaka Division (the “Commissioner”).  The Commissioner was a member of the Bangladesh Nationalist Party (“BNP”).  Not known to him at the time, S is a gangster and a politician.

7.At S’s request, the Applicant lent S Bangladesh Taka (BDT) 20,000.  S did not repay when due.  When the Applicant asked for repayment, S refused and said his father was the Commissioner.  He then assaulted the Applicant and told him to collect the money from the Commissioner.

8.When the Applicant asked the Commissioner for the money, the Commissioner replied if he wanted to continue living in that Ward, he should forget about the money.

9.One day, the Applicant met S on the street.  S assaulted him for having made a complaint to the Commissioner.  He then took all the money the Applicant had (BDT 2,800) and threatened to kill the Applicant unless he paid S BDT 5,000 every month.

10.The Applicant made a complaint to the police, but the police refused to accept his complaint, saying it was a small matter.  The Applicant realised that the police were connected to the Commissioner.

11.After some time, S and his friends came to the Applicant’s home to collect BDT 5,000.  The Applicant refused.  S gave him 10 days to pay otherwise he would be killed.

12.Ten days later, S asked the Applicant for the money.  The Applicant refused to pay.

13.At that point, the Applicant told his parents about his problem with S.  On his parents’ advise, he went to Chittagong for hiding where his father had a second business.

14.While the Applicant was away, S went to his house.  Unable to find the Applicant, S assaulted the Applicant’s brother and took BDT 85,000 from him.

15.On learning about the incident, the Applicant returned home.  He told his problem to his friend (“T”) whom he believed was connected to the BNP.  T said he would help.

16.The Applicant also approached an Awami League leader (“T2”) for help.  T and T2 knew each other. 

17.In February 2001, T accompanied the Applicant to meet with the Commissioner.  The meeting ended in an argument during which T suggested he and the Applicant would see the local member of Parliament.

18.The next morning, shortly after the Applicant and T left T’s house on their way to meet the member of Parliament, they were assaulted by a group of six to seven unknown people armed with hockey sticks and swords.  The assailants made a reference to the Applicant’s plan to see the member of Parliament.  The Applicant was stabbed and burnt with acid.  T was shot and died on the spot.  Some passers-by took the Applicant to a pharmacy for treatment.  The Applicant was too afraid to make a complaint to the police about the attack and shooting.  But he knew a police report had been made and there was an investigation.  He believes that the assailants were sent by the Commissioner.

19.Another friend of the Applicant (“R”) took the Applicant to his home in Shariatpur to hide away from S and to recover. 

20.In June 2001, T’s mother came to Shariatpur to see the Applicant.  She asked him what had happened, and told him that her family had made a complaint to the police.  The Applicant offered to be a witness.  But T’s mother declined his assistance for fear that he would be harmed.

21.The Applicant was told by R that there were protests about the shooting in the streets in his home town and it was too dangerous for him to return.  He flew from Dhaka to Hong Kong on 3 August 2001. He intended to travel to Singapore, but his Singapore visa application was refused.  Then he lost his passport.

22.In 2002, the Applicant’s parents moved to Chittagong to avoid harassment.  His brother and brothers-in-law were angry with him for bringing the trouble to the family.  For around six years, the Applicant lived on money sent by his parents.  That stopped when his father became ill.  His parents died in around 2008.  He lost contact with his family.

23.As at the time of the CAT Interview, the Commissioner was voted out as commissioner and replaced by another BNP candidate (the “incumbent commissioner”). 

24.In around 2016, the Applicant met a friend from Bangladesh (“J”) who is a member of BNP.  J told him that two of T’s cousins (“K” and “N”) are looking for him to be a witness in a court case about the shooting of T.  K is a gangster and Awami League general secretary in Mirpur.  N is a Ward Commissioner in Mirpur and connected to the ruling government.  J told him that K learnt he is in Hong Kong and said he would kill the Applicant unless the Applicant returned to Bangladesh to testify.  Towards the end of 2016, the Applicant received a telephone call from K threatening to harm him.  As at the date of the USM Interview, the court case was ongoing. 

25.The Applicant fears that if returned to Bangladesh, he will be targeted for harm or killed by the Commissioner and S because T’s brothers and cousins will want him to testify in the shooting case or by K and N if he refuses to testify.

The finding of the Board

26.The Board found the Applicant incredible and his story inherently improbable.  Such implausibility and the inconsistencies in his evidence weigh against his credibility.  

27.The centrepiece of the Applicant’s case is the Commissioner causing the murder of his friend T.  When questioned about the Commissioner’s motive, the Applicant suggested it was because T had spoken in an arrogant way when threatening to get help from the member of Parliament.  The Board found this explanation implausible.

28.The Board found it implausible that T’s cousin would have told J who happened to be a friend of the Applicant and also happened to be able to reach the Applicant that he was wanted by N to testify in T’s murder trial and his threat to kill the Applicant if he is unwilling to testify.

29.The Applicant’s evidence is also inconsistent.  While admitting that the Commissioner was outvoted and replaced by a member of the Awami League, the Applicant said that the Commissioner nevertheless retained personal power and was now somehow connected to the Awami League in that he went around with the incumbent commissioner who was from the Awami League and was his former classmate.  This is inconsistent with his evidence given at the interview that the commissioner was replaced by another BNP politician.  He explained the inconsistency by saying that the Commissioner was first replaced by a BNP politician who in turn was replaced by an Awami League politician.  The Board consider the Applicant’s evidence was a concoction at the hearing.

30.The Board rejected most of the Applicant’s evidence, in particular, that he had lent money to S; that S attempted to extort money from him, assaulted or threatened him or any member of his family; that he and T met the Commissioner; that T threatened to enlist the help of a member of Parliament; that he was burnt with acid and T was murdered in an attack on them; and that there is any court case against the attackers, S or the Commissioner.  The Board also rejected his evidence that he went into hiding in Chittagong; that K or N have threatened to harm him if he refuses to be a witness; that K had spoken to J; that J told the Applicant about K’s and N’s threats; and that K telephoned the Applicant in Hong Kong to threaten him.

31.The Applicant bears the burden of proving his entitlement to protection.  Most of his evidence having been rejected, he has failed to prove the factual basis of his claim for protection under any of the applicable grounds under the USM.  Such a failure is fatal to the Applicant’s claim.  Accordingly, the Board dismissed his appeal. 

Grounds for judicial review

32.The Applicant did not state his grounds for judicial review in the Form 86 or in his supporting affirmation.  He had been invited by the Court via its letter dated 28 May 2021 to advise the Court of his first language and to file submissions.  He only replied that his first language is Bengali and that he had applied for legal aid.  Subsequently his application for legal aid was refused.

33.In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  The essence of the Applicant’s complaint is that he disagrees with the finding of the Board that it is safe for him to return to his home country.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Bangladesh.  

Conclusion

34.The role 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.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[6].

35.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; correctly identified the issues and observed a very high standard of fairness.  The Board found the Applicant not credible and that he has failed to prove the factual basis to support of his case.  It was on that basis that the Board found that he has failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds.  The Court could not detect any error of law in the Decision.  The 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 proposed judicial review has no realistic prospect of success. 

36.For the above reasons, leave to apply for judicial review was refused.

Dated 4^th day of April 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] [2018] HKCA 549

[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] 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

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