Younus Mohaommad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 1037/2019

[2022] HKCFI 1773

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1037 of 2019

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 8 October 2018 (the “Notice”) and the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 8 March 2019 (the “Decision”).

2.In his response to the Court’s invitation for submission dated 28 March 2022, he requested an oral hearing. A hearing was scheduled for him on 4 May 2022. Notice of the hearing was sent to him by post on 21 April 2022. It has not been returned through the post. There is nothing to suggest that he has not received the notice or has moved. Accordingly, the Court proceeded to consider his application in his absence according to the paper already placed before the Court.

3.The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board[1] and the Applicant has invoked those procedures. The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[2]. For the benefit of the Applicant, the Court treated his complaints against the Director as if they were directed at the Board also.

4.The Applicant is a national of Bangladesh, now aged 34. He entered Hong Kong on 7 October 2015 illegally and was arrested by the police on 8 October 2015. On 11 October 2015, he raised a non-refoulement claim.

5.In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6]. By a Notice of Decision dated 8 October 2018, the Director rejected his claims under all four applicable grounds.

6.He appealed to the Board against the decision of the Director in the Notice. On 8 March 2019, his appeal was dismissed by the Board’s Decision. On 16 April 2019, he applied for leave to apply for judicial review of that Decision.

The Applicant’s case

7.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claimed that he would be harmed by his five paternal uncles (“Uncles”) and their cadres because of a land dispute.

8.The Applicant was born in District Munshiganj, Bangladesh. He has four siblings and his family resides in Bangladesh. His family supported the Jamaat-e-Islami political party (“JEI”). His father was a leader of the central committee of JEI at the Rampal Union Council level. His father inherited a piece of land (the “Land”) from his paternal grandfather in 2005. The Land is about 7200 square feet and is situated near the entrance of his home village. There is also a large family house situated on the Land.

9.The Uncles reside in the same village as the Applicant. They are supporters of Awami League political party (“AL”). One of the Uncles (Kobir) was the president of Chhatra League (the student wing of Awami League) at the Rampal Union Level. The other four Uncles did not have any position or rank in the party but they were equally powerful as Kobir.

10.In around 2005, Kobir and his father went to the home of the Applicant’s father demanding the Applicant’s father to give the Land to them. They showed a forged title deed to prove that the Kobir’s family was the legal owner. They had a heated argument with the Applicant’s father. The Applicant was not present during that incident.

11.In around 2009, the AL became the ruling party in Bangladesh. Kobir, Kobir’s father and their associates came to the house of the Applicant’s father. They again relied on a forged title deeds to claim ownership of the Land. The Applicant’s father said the ownership would be settled in court but Kobir told him that he could be thrown out of the house. They did not attack the Applicant’s father in this incident.

12.In around May 2012, the Applicant, his father and siblings took part in a large scale protest in Dhaka organized by JEI against AL. About a week after the protest, Kobir came to the family house with ten to fifteen cadres armed with machetes and choppers. Kobir claimed that no man from JEI could stay in the house and they attacked the Applicant’s family. The Applicant was beaten for around 20 to 25 minutes and his back was slashed by a machete. He managed to escape and later learnt from his father that Kobir had attempted to kill his elder brother (Ilyas). The Applicant went to a hospital and received three to four stitches for his injuries. He was discharged on the same day.

13.Both the Applicant and Ilyas fled after the attack. The Applicant stayed in Dhaka. He tried to return home in around early 2013 but his father told him that it would not be safe for him to return. His father later told him that Kobir and his men were looking for him in Dhaka. The Applicant was scared. He closed his shop there in around mid-2013 and went into hiding. He went to Nepal and India for protection in mid-to-late 2014. He returned to Bangladesh on both occasions because he could not get any information about asylum. He attempted to flee to Suriname but was not allowed to board the flight. He later met a business person who told him that he could seek protection in Hong Kong. He then engaged an agent to arrange his passage to Hong Kong. Eventually, he entered Hong Kong illegally via Mainland China in October 2015.

14.In early 2016, his friend Parves told him that his father and Ilyas went missing. He later learnt that Kobir had occupied the Land and the family house and that Kobir built another house on the Land. His mother and siblings were too powerless to oppose Kobir and were living with his maternal grandfather.

15.The Applicant believed that he and Ilyas were targeted by Kobir because they would receive shares of the Land after his father is death. If they die, it would be easier for Kobir to take the Land because his father was too old and his siblings were too young to resist. The Applicant’s father made a police complaint on the same day of the attack but the police did not take any action or make any arrest.

The finding of the Board

16.The Applicant testified before the Board. The Board found him evasive and incredible on many issues.

17.The Board did not believe his evidence. It found his case was vague and unbelievable. It accepted his personal and family background. It accepted that the Applicant’s family might have some dispute with the Uncles about ownership of the Land and the family house thereon. But, it did not accept that any assault occurred because of the dispute. The Applicant might have suffered injuries on his back but they were unrelated to the alleged attack by Kobir, whether because of the land dispute or because of their political difference. The Applicant’s evidence relating to all other matters including the threats and attacks by the Uncles were rejected by the Board. The Board found no evidence that suggests that the government would assist the Uncles to track down the Applicant so as to harm him and that the Uncles were so powerful and influential as claimed. On the basis of the aforesaid finding, the Board found that the Applicant was not or would not be faced with real chance of harm if returned to Bangladesh.

18.Even assuming to the contrary that the Applicant would be faced with real chance of harm, the Board found, taking his case at its highest, that there was no ground to believe that the Applicant would be tortured or seriously harmed by his Uncles if returned to Bangladesh and that the past ill-treatment did not attain a minimum level of severity. The Board found that the Applicant’s problem was located to his local area and did not believe the Uncles were so powerful and their abilities to locate him anywhere in Bangladesh were not that strong. It found that it was the Applicant’s own volition not to seek police protection and not that state protection was not available. On the basis of Country of Origin Information (“COI”), the Board found no indication that the state was involved in, indifferent to or has provided any form of encouragement to the Uncles in threatening or causing any harm to the Applicant. It found no basis in the evidence to believe that any public official or person acting in an official capacity would play any part in inflicting, instigating or acquiescing in the perpetration of such harm to the Applicant.

19.Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant was not entitled to protection under any of the four applicable grounds under the USM and dismissed his appeal against the Director’s Notice.

The applicable legal principles

20.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[7].

Grounds for judicial review

21.The Applicant advanced five grounds of judicial review in his Form 86, but he did not elaborate. He was invited by the Court’s letter dated 22 March 2022 to make submission. Other than saying he had no new documents to submit and that he wanted to have an oral hearing, he did not make any written submission. He also absented himself at the hearing.

Ground (1) - The Decision was wrong and Wednesbury unreasonable

22.The Applicant gave no particulars as to what was wrong with the Decision and in what way and why it was Wednesbury unreasonable. The Court understood that he meant to disagree with the outcome of the Decision. In the absence of particulars, the Court could only leave this complaint to be dealt with in its overall scrutiny of the Decision for errors of law, procedural unfairness and irrationality.

Ground (2) – Failure to give proper weight-age to the presence of state acquiescence

23.The Applicant complained that it is evident that the Director has failed to appreciate or give proper importance or weight-age to the presence of state acquiescence resulting in an unfair outcome and rejection of his claim. He said he was “tortured at the behest and the state law enforcement agencies as well as those in the high ups of political circles.” He did not refer to the evidence he relied on as supporting that complaint.

24.On his own evidence, there were three incidents in 2008, 2009 and 2012. There was no violence during the first two incidents. During the 2012 incident, Kobir and a group of 10 to 15 cadres attacked the Applicant and his brother at his home. The Applicant’s father made a report to the police. The police recorded the complaint and went to the Applicant’s home to make some investigation. The Applicant alleged there was no follow up and no arrest. On the other hand, he did not follow up with his complaint either and left the home village. He went hiding in Dhaka and even left for India and Nepal. He had no problem exiting and entering Bangladesh. Indeed, as the Board found, it was the Applicant who never insisted protection from the police or other public authorities in his country and not the case that he had been refused assistance by the authorities. There is no evidence to suggest that the attack was made at the behest of state law enforcement agencies as well as those in the high ups of political circles.

25.As for the weight to be given to the evidence and the inference to be drawn from the evidence, it is a matter solely within the realm of the Board as the tribunal of fact, which the court in an application for judicial review will not interfere.

Ground (3) – to take such argument into account or that the Director has failed to give enough weight to such argument and Country of Origin favourable to the Applicant

26.Although this complaint is directed at the Director, the Court assumed in favour of the Applicant that it is directed at the Board as well. However, he failed to identify the argument which he alleged the Board of having failed to take into account. It is impossible to properly assess this ground of review.

27.As for the weight to be given to a COI or parts of a particular COI, it is also a matter within the realm of the Board as the tribunal of fact, which the court cannot interfere.

Ground (4) – clean case of unfair attitude shown by the Director; corruption and incompetence of the administration

28.This complaint is lacking in particulars. The Applicant did not identify the unfair attitude of the Director or the Board if the criticism is taken as being also directed at the Board. It is impossible to assess this complaint. As for the complaint of corruption and incompetence of the administration, even if established, it has no bearing on the Board’s Decision because it found that the Applicant’s risk of harm was low.

Ground (5) – The Director failed to attain the high standard of fairness required by the Wednesbury test

29.This is a repetition of the Ground (1) and is lacking in particulars. The Court could only consider this complaint in its overall examination of the Board’s Decision.

Conclusion

30.Having rigorously examined the Board’s Decision, the Applicant’s grounds for application, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof and quoted relevant precedents in support of its decision. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice. It correctly identified the factual and legal issues raised in the claims. The Applicant’s claims are founded on his fear of harm by his Uncles and their cadres. The Decision of the Board was based on its assessment of the Applicant’s credibility and his risk of harm. The Board had carefully weighed the evidence and assessed his credibility. The Board found him incredible. As the Applicant bears the burden of prove of his claims, such a finding is fatal. It was on that basis that the Board found that there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds.

31.The Board’s Decision is a finding of fact which is exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Decision was utterly without fault. There were no errors of law in its Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board observed a very high standard of fairness. Its Decision did satisfy the enhanced Wednesbury test. Having considered his grounds for application, the Court was satisfied that the Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review. For the above reasons, leave to apply for judicial review was refused.

Dated 15^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