Sarder Abdul Mazid v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 248/2019

[2022] HKCFI 894

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 248 of 2019

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;          or
	cconsideration 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.The applicant applies for leave to apply for judicial review of the Decision dated 17 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application 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 1 March 2016 and surrendered to the Immigration Department on the next day.  On 15 August 2016, 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 the Awami League (“AL”).  He also feared that he would be arrested by the Bangladeshi police due to false cases against him filed by the local AL leaders.

5.According to the applicant, his family were supporters of Jamaat-e-Islami (“JEI”).  In 2014, prior to the general election, the applicant was approached by members of the AL, requiring him to join them.  The applicant refused.  In the end, the AL won the election, a result which ignited protests from members of other parties, including the applicant.  To suppress the protests, the AL started to target the protestors.  They filed false cases against the applicant, leading to a police raid in the applicant’s house on one occasion.  Since then, the AL members and the police had been visiting the applicant’s house from time to time.  Feared that the threats from the AL members might materialize, the applicant eventually fled to Hong Kong for protection.  Details of his claim were set out at paragraph 6 of the Director’s Decision and paragraph 10 of the Board’s Decision as 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 a Notice of Decision dated 1 November 2017 (“the Director’s Decision”), the Director refused his claim.  The Director found that no substantial ground was present to believe that the applicant would face a real or substantial risk of harm upon refoulement because (i) on the applicant’s own evidence, he was never inflicted with any harms from the AL members nor did he encounter any problem with the police [20]-[22]; (ii) state protection would be available to him [23]-[25]; and (iii) internal relocation was an option open to him [26]-[31].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 11 September 2018, the Board conducted an oral hearing for his appeal, during which the applicant answered inquiries from the Board with the assistance of an interpreter [27]. 

9.The Board reminded itself with the applicable legal principles in assessing the applicant’s claim [28].  It further explored the material aspects of the applicant’s claim during the hearing.  The Board observed that the applicant provided inconsistent accounts on several matters, such as when he started supporting JEI [31].  Further, it noted that the applicant’s new claim, advanced at the hearing, about being assaulted by the police for his complaint against AL’s vote rigging contradicted with the country of origin information and thus undermined his credibility [32].  Insofar as the police assaults were concerned, the Board found that the applicant’s evidence was inconsistent and constantly changing [33].  It also pointed out the discrepancies in the applicant’s evidence and the official data as to the details of AL [34]-[35]. For these reasons, the Board refused to accept his claim and dismissed his appeal.   

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 28 January 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant stated his story of why he had come to Hong Kong, the dominating power of Awami League and it is dangerous for him to return to his country. He would like to stay in Hong Kong or to emigrate to other countries. He did not state any complaint against the Board’s hearing.

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 applicant’s 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 Decisions 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.There is no valid reason from the applicant to challenge the Board’s Decision.

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.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

18.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 6^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