Sohel Mohammed v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1046/2019

[2022] HKCFI 1384

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1046 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 8 April 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 on 13 August 2015 as a visitor and was permitted to stay until 27 August 2015.  He did not depart and had overstayed since 28 August 2015.  On 31 August 2015, he surrendered to the Immigration Department.  On 6 December 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 Awami League (“AL”).

5.According to the applicant, he joined the Bangladesh Nationalist Party (“BNP”) in 2006 under the influence of his elder brother.  He would attend party meetings and rallies as well as promote the BNP.  On 19 April 2009, the applicant encountered the first incident in which he engaged in a fight with AL members.  They threatened to kill him if he refused to join the AL.  The applicant stated that his brother was attacked by the AL members and had fled to other country.  Between July 2010 to late 2013, the applicant stayed abroad.  Except the phone calls of threats, nothing eventful happened. Thereafter on 3 November 2013, while the applicant was at home, he was taken to the police station because of a false case filed against him by the AL members.  Later in February 2015, he was again attacked by the AL members with wooden sticks.  Out of fear, he escaped to other cities before eventually fleeing to Hong Kong for protection.  Details of his claim are set out at paragraph 7 of the Notice of Decision dated 15 December 2017 by the Director (the “Director’s Decision”) and paragraphs 47 to 70 of the Board’s Decision as described below.

The Director’s Decision

6.The Director considered the applicant’s claim 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.  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”);

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 way of the Director’s Decision, the Director dismissed his claim. The Director rejected his allegation there was a real risk of harm of him being harmed or killed by the AL members because (i) the low intensity and frequency of past ill-treatment indicated an unlikelihood of future risk of harm [12]-[16]; (ii) state protection would be available to him [17]-[19] and (iii) internal relocation was a viable alternative [20]-[24].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 12 December 2018, the Board conducted an oral hearing for his appeal, during which he answered the Board’s questions with the assistance of an interpreter [72].

9.Having considered the applicant’s evidence, the Board concluded that his claim was not substantiated.  The Board observed that the applicant’s oral testimony was vague and lacked sufficient details [101].  He brought in new aspects of the claim which were not made before the Director [103] and his explanation of such failure was unsatisfactory [104]-[106].  The Board also considered his evidence to be inconsistent [107]-[115] and his accounts implausible [116]-[117].  As a result, the Board found that the applicant lacked credibility [118]-[120].

10.For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed his appeal.

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

11.The applicant has filed Form 86 dated 17 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant enclosed the Decision without setting out any specific ground in support.

DISCUSSION

13.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).

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

15.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.”

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

17.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.

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

CONCLUSION

19.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 30^th day of May 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