Mollah Amin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 485/2019

[2022] HKCFI 955

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 485 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
	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.The applicant applies for leave to apply for judicial review of the Decision dated 14 February 2019 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 14 February 2016 and was arrested by the police on the same date. On 5 March 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”).

5.According to the applicant, he joined the student wing of Bangladesh Nationalist Party (“BNP”) in 2005 and had been promoting BNP regularly.  On 5 January 2015, the BNP leadership required the members to perform a national blockade in order to regain power.  Following the instruction, the applicant participated in the traffic vandalism.  On many occasions, the participants were attacked by the AL members and the police.  The applicant suffered injuries during the attacks.  The blockade lasted for around 6 months.  During the blockade, the applicant claimed that the AL and police attempted to arrest him but he was able to escape due to advanced notice given by BNP members.  On 14 November 2015, a large group of AL members visited the applicant’s house and threatened to kill him.  The applicant fled to his leader’s house in fear and subsequently left for other villages.  In December 2015, in the public meeting where two BNP leaders would give speeches, armed police and members of the AL raided the meeting and injured the attendees, including the applicant.  Out of fear, the applicant eventually fled to Hong Kong for protection.  Details of the applicant’s claim were set out at paragraph 6 of the Director’s Decision and paragraphs 8 to 16 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 20 September 2017 (“the Director’s Decision”), the Director refused his claim.  The Director found that no substantial grounds were present to believe that the applicant would face real or substantial risk of harm upon refoulement because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[14]; (ii) state protection would be available to him [15]-[19]; and (iii) internal relocation was an option open to him [20]-[22].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  He attended the oral hearing on 29 November 2018 and gave evidence before the Board. 

9.The Board enquired the applicant on the material aspects of his claim [21]-[36].  Having considered the applicant’s oral evidence and those in his written statements, the Board found that the applicant had no knowledge of the workings of the BNP and the AL [39]-[40]; that he provided contradictory evidence as to his activities in the party [41]; that his evidence at the hearing about the claimed false case against him was also different from that in his written statements [42]; and that he gave inconsistent versions in relation to the alleged attack against him in a political rally in Dhaka [43]. In light of these inconsistencies which the applicant failed to provide cogent clarifications, the Board refused to attach weight to these evidence [45]. Thus, the Board found the applicant’s evidence lacked credibility and, for this reason, rejected the applicant’s 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 20 February 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant set out his factual background for coming to Hong Kong and how the Awami League had raked the election. He also said that he did not understand English in the hearing bundle, which he did not understand. He needed two months for his friend’s assistance.

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.The factual background does not assist his application as it had been considered by the Board. As to his complaint that he does not understand English, he has written his submissions in English. Also, the Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held: “Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.” The applicant’s grounds therefore fail. Also, I do not find any reason for the applicant to ask for two months’ adjournment for his friend’s assistance. He has not given any reason why his friend was unable to help to him before the hearing and what assistance he would obtain from his friend.

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 she 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 12^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