Hasan Mehedi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 934/2019

[2022] HKCFI 1493

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 934 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 March 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 January 2016 and was arrested by the police on the same date. On 15 January 2016, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by Mr. Topu.

5.According to the applicant, he was a member of Jubodol, a young wing of Bangladesh National Party (“BNP”). Soon, he was promoted to be the assistant organization secretary and responsible for monitoring the activities of a group of party members. In mid-2015, Topu and some members from Awami League (“AL”) visited him and demanded money from him. They had had a fight. Thereafter, Topo started to harass and threaten the applicant. Out of fear, he fled to Hong Kong for protection. Details of his claim are set out at paragraph 8 of the Notice of Decision dated 11 May 2018 by the Director (the “Director’s Decision”) and paragraph 16 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:

(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 of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“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.The applicant failed to attend the scheduled screening interview due to his health condition. Having considered the circumstances, the Director determined the applicant’s claim on the available information. By way of the Director’s Decision, the Director refused the applicant’s claim. The Director found that the level of risk of harm upon his refoulement was assessed to be low because (i) the money extortion was a private dispute without state involvement and the applicant’s alleged injuries did not attain the minimum level of severity [14]-[15]; (ii) state protection would be available to him [16]-[21] and (iii) internal relocation was a viable alternative [22]-[27].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 22 January 2019, he attended the oral hearing with the assistance of an interpreter [8].

9.The Board enquired into the material aspects of the applicant’s claim [23]-[46]. In particular, the Board cast doubts on certain evidence on the alleged incidents [26]-[40]. It also observed that the applicant was inconsistent as to the injuries he sustained and the role he played in Jubodol [42]-[43]. He was vague when asked about the policies of BNP or Jubodol [44] and that his letter, allegedly issued by Jubodol, had no probative value [46]. For these reasons, the Board was not satisfied that the applicant had established a real risk of harm if refouled [49].

10.Thus, 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 8 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of her application, the applicant said he was dissatisfied with the Board’s Decision, dismissing his claim.

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.The Board has given reasons in support of its Decision. The applicant has not been able to raise valid reasons to challenge its 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 7^th day of June 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