Md Momin Hossain v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 938/2019

[2022] HKCFI 1674

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 938 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 28 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.

The applicant

3.The applicant is a national of Bangladesh.  He entered Hong Kong on 24 March 2011 as a visitor.  After his applications for extension of stay, the applicant was permitted to stay until 16 April 2011.  However, he did not depart and had overstayed since 17 April 2011.  On 4 June 2012, he was arrested by the police.  On 12 March 2014, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by (1) leaders of Bangladesh Awami Jubo League (“BAJL”) and members of Bangladesh Awami League (“AL”), and (2) the Bangladesh police.

4.According to the applicant, in around 1993, he registered as a member of Bangladesh Jatiotabadi Chatra Dal (“JCD”), the student wing of Bangladesh Nationalist Party (“BNP”), under the influence of his college principal.  He was responsible for promoting the JDC and assisting JDC officers in running elections.  In 1998, the applicant started his own garment business.  In 2006, AL took power and was elected as the ruling party in 2009.  Thereafter, from January 2009 to October 2010, the applicant encountered eight incidents with the leaders of BAJL.  Among the incidents which involved extortion of money and verbal threats, the applicant was attacked once in June 2009 and kidnapped once in August 2010.  He was also arrested and detained by the police and his father-in-law’s house was raided by unknown people.  Out of fear, he relocated to Dhaka from October 2010 to March 2011 and eventually came to Hong Kong to seek protection. 

5.While the applicant was in Hong Kong, he was informed by his family members that (1) he was a wanted person; (2) his wife was threatened by AL members; and (3) the local police extorted money from his family and also framed false charges against them.  The details of his claim are set out at paragraph 6 of the Notice of Decision dated 2 September 2016 by the Director (the “Director’s First Decision”) and paragraphs 24 to 65 of the Board’s Decision described below.

The Director’s Decisions

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 First Decision, the Director dismissed the applicant’s claim on Torture risk, BOR3 risk and Persecution risk for the level of risk of harm upon his refoulement was assessed to be low.  In elaboration, the Director found that (i) the centerpiece of his claim, namely, his membership with the JCD was in doubt [15]; (ii) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [16]-[40]; (iii) state protection would be available to him [41]-[45]; and (iv) internal relocation was a viable alternative [46]-[48].  On 3 July 2017, for reasons set out in the Notice of Further Decision that there was no evidence to show that his right to life would be violated upon his return, the Director also rejected the applicant’s claim on BOR2 risk (the “Director’s Second Decision”).

8.The Director’s First Decision and the Director’s Second Decision will be referred to collectively as the “Director’s Decisions”. 

The Board’s Decision

9.The applicant appealed the Director’s Decisions to the Board.  On 29 November 2017 and 28 February 2018, the Board conducted oral hearings for his appeal, during which he was assisted by an interpreter [7].

10.The Board considered the country of origin information on the political rivalry between the AL and BNP.  It accepted that there were ongoing incidents of threats and violence among the members [66].  It also accepted the applicant’s evidence that he was a member of JCD but was of the view that he had little involvement in the political activities of BNP [67].  The Board was satisfied that the AL members demanded money from the applicant but it cast doubts on the alleged ongoing harm and harassment against him [69]-[70].  In particular, the Board found that the documents, while might be genuine, did not support the applicant’s claim [71]-[75].  It also considered the applicant’s version of events contained discrepancies that were not satisfactorily explained [76]-[79].  Further, the Board refused to accept that the applicant was a primary target for the AL [80]-[85] or that his family members sustained any harm while he was in Hong Kong  [90]-[94].

11.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

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

13.In his affirmation in support of his application, the applicant referred to the Board’s Decision and the hearing bundle. However, in a separate statement attached to Form 86, he set out his specific grounds. I shall summarize his grounds below.

(1)   The Board’s Decision was irrational.

i.   Whilst the Board accepted his evidence he had past association with BNP and that he faced demand from AL people for money, the Board chose not  to accept that the AL people posed him a real risk upon his return.

ii.  The Board accepted that he had suffered injury on the one hand, but it did not accept the fact that the land dispute was fabricated against him and the injury was caused by the AL people.

(2)   The adjudicator was procedurally improper and/or unfair in her assessment of his case.

i.   The adjudicator’s assessment is inconsistent when she came to the documentary evidence.  On the one hand, the adjudicator accepted the document relating to the fabricated land dispute and the attacks by the Awami League was genuine; on the other hand, she refused to accept the wanted notice in the newspaper was genuine and the warrant and the First Information Report against him, without giving sufficient reasons.

ii.  The adjudicator was unreasonable to require him to answer questions which he was unable to do so. Examples are she asked why his wife was able to locate him when he was beaten up to unconsciousness and why the Awami League people would continue to attack him despite he left the association of BNP.

(3)   The adjudicator overly relied upon the COI without taking into account his personal background and experience such as the nexus between political parties and official corruption and that he had held a key position as Social Welfare Officer / Social Welfare Secretary during his time in Chatra Dal and Jubo Dal.

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 Decisions 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 the conclusion against the applicant:

“95. In light of all the above considerations, I am not satisfied that the Appellant was harmed by members or supporters of the Awami League or that false cases were file against him because of his prior membership of the BNP prior to his departure from Bangladesh in 2011. I am satisfied that, if he returns to Bangladesh, any risk of harm he might suffer at the hands of the Awami League because of his prior association with the BNP is very low.”

18.It is unfair to say that the adjudicator was unfair or unreasonable in her assessment of the evidence in this case. The applicant’s complaints above can be explained by the Board’s reasons in its Decision:

(1)   “67. … his own evidence is that he had very little involvement with the BNP or political activities in general.”

(2)   “74. …the document does not provide independent evidence of the truth of the Appellant’s claim. Indeed, the document, for the reasons outlined above, provides a different picture to that given by the Appellant.”

(3)   “76…. As set out above, there was a significant discrepancy in the Appellant’s account of how his wife came to know he had been attacked and was in a medical clinic. He offered no reasonable explanation for the discrepancies. His explanation for how the Awami League members would know his wife’s telephone number also does not stand up to scrutiny. It is fanciful that members or supporters of the Awami League involved in a local dispute would be able to, in an instant, obtain details of someone’s mobile number.”

(4)   “79, …The warrant itself does not specify any charges and what he knew about them. …” His evidence in the first hearing and in the second hearing were inconsistent.

(5)   “80. Even if I were to accept the arrest warrant as being a genuine document, there is nothing in the document to support the Appellant’s claim that he was arrested on false extortion charges. … the document does not provide independent corroboration of his claims.”

(6)   “81. One of the difficulties with the Appellant’s claims that he was pursued by members of the Awami League from 2009 to 2011 because of his membership of his BNP is that, at that time, he was not active in the BNP and had ceased to be an active member in 2000….”

(7)   “86. These matters lead me to conclude that the Appellant had fabricated his claims for non-refoulement protection. While some of the documents he has provided may be genuine, they do not provide objective support for his claims and cannot be relied upon to substantiate them.”

(8)   “87. This leads me to the extract from the Daily Ittefaq newspaper of 20 May 2011 of a wanted notice for the Appellant in relation to cases lodged against him. As noted above, the notice referred to him as a “worker of the Nationalist Youth Party” which he was not at the time.”

19.The above clearly demonstrate how the adjudicator had dealt with the applicant’s evidence fairly and reasonably, giving sufficient reasons for her conclusion. The adjudicator was entitled to make her assessment of the evidence and come to her conclusion as she had done. Grounds (1) and (2), for the above reasons, fail. Ground (3) is only his bare assertion without any evidence in support of it.

20.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.

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

CONCLUSION

22.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 21^st 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