Habib Ahasan v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 937/2019

[2022] HKCFI 1085

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 937 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.This is the applicant’s application for leave to apply for judicial review of the Decision dated 29 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall 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 on 14 March 2015 and was permitted to remain as a visitor until 28 March 2015.  He did not depart and had overstayed since 29 March 2015.  On 31 March 2015, he surrendered to the Immigration Department.  On 23 July 2015, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Fazlul Haque (“FH”) and by the current ruling government.

5.According to the applicant, he was a supporter of Jamaat e Islami (“JIP”) and was appointed as a leader of the party in his college.  Since JIP was banned by the ruling government, he was responsible to gather people who could act as guards for the events in case of government raids.  The applicant’s efforts were appreciated by the leaders and he was soon promoted to be in charge of the party meetings.  However, their meetings were constantly disrupted by Chatra League (“CL”) students with weapons.  In February 2011, the conflict burst between JIP members and CL students, resulting in injuries and hospitalization of the JIP members.  JIP also had conflicts with Shariful and his people.  In 2011, during a strike, Shariful was killed.  FH, the leader of Awami League and father of Shariful, believed that the applicant was the killer of his son and threatened to kill him.  FH also attacked the applicant’s family for his whereabouts.  Out of fear, the applicant eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 7 of the Notice of Decision dated 14 May 2018 by the Director (the “Director’s Decision”) and paragraphs 19 to 50 of the Board’s Decision described below.     

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

(1)   risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)   risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(3)   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

(4)   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 way of the Director’s Decision, the Director refused his claim.  The Director found that the level of risk of harm upon the applicant’s refoulement was assessed to be low because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[16]; (ii) state protection would be available to him [17]-[18]; and (iii) internal relocation was a viable alternative [19]-[20]. 

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 25 January 2019, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [56].

9.Having considered the applicant’s evidence, the Board concluded that his claim was not substantiated.  The Board found that his evidence was fabricated and inconsistent.  For example, he mentioned that his party was banned by the government and yet they were able to hold high profile meetings [58]-[61].  It refused to accept that FH openly wanted the applicant’s head [63]-[65].  It also rejected the applicant’s allegation that FH saw him as the murderer of Shariful [66]-[67].  Further, it found that the applicant’s stories about CL students artificial, that his assertion about JIP being a banned party contradictory [69]-[71] and that the dispute with FH was private matter without state involvement [72]. 

10.The Board also considered the applicant’s alleged injuries to be minor and the alleged attack against the applicant’s family unreasonable [73]-[75]. In any event, both state protection and internal relocation were available to the applicant [77]-[104].

11.For the aforesaid reasons, the Board rejected his claim and dismissed his appeal.  

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 8 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he said the Board had disregarded the danger and threats he had in his country.

DISCUSSION

14.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).

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

16.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.”

17.The Board has given its reasons in support of its Decision. The applicant’s complaint is only his opinion without any evidence in support. The applicant has not raised any valid ground to challenge the Board’s Decision.

18.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.

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

CONCLUSION

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

Dated the 14^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