Badal Das v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 1027/2019

[2022] HKCFI 2085

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1027 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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

1.  Extension of time to apply for leave to apply for Judicial Review be refused; and

2.  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 decisions of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 11 April 2019 (the “2019 Decision”) dismissing his appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Further Decision dated 20 April 2017 (the “Further Notice”).  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

2.The Applicant is a national of Bangladesh, now aged 47.   He entered Hong Kong on 17 July 2006 as a visitor and was permitted to remain until 24 July 2006.  He overstayed and was arrested on 3 November 2007. 

3.On 19 March 2009, he raised a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  His claim was later converted to be a non-refoulement claim under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3].  By a Notice of Decision dated 5 May 2015 (the “Notice”), the Director rejected his claim under all three applicable grounds.  The Applicant appealed to the Board against the decision of the Director in the Notice.  His appeal was dismissed by the decision of the Board dated 16 February 2017 (the “2017 Decision”).

4.On 28 March 2017, the Director invited the Applicant to submit additional facts by 11 April 2017, if any, which he considered relevant to his claim on all applicable grounds for non-refoulement protection, including the right to life under Article 2 (“BOR 2”), in case he had omitted them because of any misunderstanding.  The Applicant did not respond.  By his Further Notice dated 20 April 2017, the Director dismissed his claim under BOR 2 Risk[4].  The Applicant appealed against the Further Notice.  His appeal was dismissed by the Board’s 2019 Decision dated 11 April 2019. 

5.On 16 April 2019, the Applicant applied for leave to apply for judicial review of the 2019 Decision, but not the 2017 Decision.  However, in his Form 86 the Applicant explicitly challenged the Board’s Decision concerning his claim under torture, BOR 3 and persecution risks which are subject matters of the 2017 Decision.  By the time of this application, the time to apply for leave to apply for judicial review of the 2017 Decision had long lapsed.  Accordingly, the Court proceeded to consider the scope of this application and whether extension of time should be granted to enable him to apply for leave to review the 2017 Decision.

The scope of this application and extension of time to apply in respect of the 2017 Decision

6.Under Order 53, rule 4(1) of the Rules of the High Court, an applicant may apply for leave to apply for judicial review of the court’s decision within three months after the decision was made.   By the time the Applicant filed his Form 86, he was about 23 months out of time for seeking leave to apply in respect of the 2017 Decision. The delay is very substantial.  For all that this Court knew from his Form 86 and supporting affirmation, he had no explanation for the delay in seeking leave to apply in respect of the 2017 Decision.  By reason of his very substantial and totally explained delay alone, extension of time will not be granted for him to apply for leave to review the 2017 Decision, however strong his complaint might otherwise be: see Po Fun Chan v Winnie Cheung[5].

7.Furthermore, the Applicant has advanced no arguable grounds for judicial review of the 2017 Decision.  The sole ground he advanced was that he disagrees with the Board’s “dismissing the appeal by ruling that the Applicant fails to establish a case for non-refoulement whether under the principles of torture or BOR 2 or BOR 3 or Persecution referred to in the notices of application for leave to apply for judicial review.”  At the highest, he was seeking to challenge the finding of fact of the Board that he had failed to prove his entitlement to protection under those three grounds.  As explained below in relation to his application to review the 2019 Decision, such challenge is not permissible except where the decision involves error of law, procedural unfairness or irrationality.  Having rigorously examined the 2017 Decision with anxious scrutiny, the Court was satisfied that the 2017 Decision did not contain such vitiated elements.  His intended judicial review of the 2017 Decision had no prospect of success.

8.For the above reasons, no leave was granted to amend this application to include a review of the 2017 Decision.  This application is only restricted to the 2019 Decision.

The Applicant’s case

9.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form 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 will be harmed or killed by Jakir and his people of the Bangladesh National Party (“BNP”).

10.The Applicant was born and raised in his ancestral home village in District-Munshigonj (Munshiganj), Bangladesh.  He and his family are Hindus.  He moved to Hasail village in February 2006 to seek business opportunities.  He was married in 2000 and has 2 children.  His family currently resides in Bangladesh.  He has work experience in the grocery and fish-supply business and had taken part-time odd jobs.

11.The Applicant has been supporting the Awami League (“AL”) since 1993.  He began his fish-supply business in around 2003.  He started suffering loss in around 2004.  He borrowed 1.7 million Takas in early 2004 for the purpose of his business from a businessman and gang leader known as Jakir.  Jakir was also said to have some connection with the BNP, although the extent of that connection was not known to the Applicant.  Under the terms of the oral loan agreement, the Applicant had to repay the principal within 6 months and to give half of his business profits to Jakir during those six months.

12.The Applicant fell into a canal in his car about three or four days after drawing down the loan.  He became unconscious and was hospitalised for four or five days.  His left knee was deeply cut.  He could not operate his business or take up employment after the car accident.  He offered to repay Jakir by instalments, but Jakir refused.

13.One day in 2005, the Applicant ran into Jakir in Dhaka City.  Jakir demanded repayment and punched him in the face once or twice.  Jakir also threatened to kill him unless he repaid the loan within two days.

14.In early 2006, the Applicant went to Nepal, India, Mainland China and Hong Kong to seek business opportunities.  Sometimes he carried goods for his friends from abroad when he returned to Bangladesh.  However, he dared not stay with his family when he returned, because he had no money to repay Jakir and Jakir had made threatening phone calls to kill him.  While he was abroad, Jakir harassed his family.  The Applicant had not sought protection while he was in Nepal, India or Mainland China as he expected he would be able to repay Jakir.

15.He last departed Bangladesh on 17 July 2006.  After arriving in Hong Kong, he felt he could not live in Bangladesh anymore because he received pressure from Jakir every time he returned.  He decided not to return to Bangladesh and made a claim for protection to the United Nations High Commissioner for Refugees Hong Kong Sub-office.

16.The Applicant also claimed that his family (who are Hindus) was harassed in the Hasail village. There were around 10 to 15 Hindu families but at least 50 Muslim families in the village.   When the Hindu families celebrated their religious festivals and performed religious rituals, the local Muslims would throw stones and bricks at their houses and their statues.  The Applicant’s family complained to the member and chairman of the Union Council of the village.  The harassment stopped when these officials arrived, but resumed after the officials left.

17.The Applicant’s problem escalated within two months prior to the hearing of the appeal against the 2017 Notice before the Board.  Jakir and his men visited the Applicant’s family four times at an interval of ten days.  They renewed their demand that the Applicant had to repay and threatened to kill his wife and abduct his daughter, if he did not repay.  They wielded a gun on the first and third occasions and a knife on the second occasion.

The finding of the Board in the 2017 Decision

18.The Board assessed the Applicant’s claim on the basis of the case as he asserted.  Despite the threat to kill, the Board noted that Jakir had not done anything indicating that he would carry out the threats.  The Board found that Jakir’s threats were means to coerce the Applicant into making repayment but Jakir had no intention to inflict serious harm on him.  The Board therefore assessed the risk of harm from Jakir was to be low.

19.As for the alleged risks from the local Muslims, the Board noted that harassment from Muslims was a common threat to all Hindus in the village.  The Applicant was not targeted personally by the local Muslims.  Further, the harassment was in the form of damage to their houses and statues only.  There was no risk of harm to the physical or mental health of the Hindu villagers.  The Board therefore did not accept that the alleged threat from the local Muslims fell under the ambit of torture, persecution or BOR3 risks.

20.The Board also noted from credible Country of Origin Information (“COI”) that there were “clear indications of positive results in recent year” in combating corruption and in improving the performance of the police in Bangladesh.  It was satisfied that the Bangladeshi government had taken steps to combat violence against religious minorities.  It believed that the authorities would carry out their duties to uphold the rule of law and that the police would discharge its duties properly.  It also noted from the Applicant’s evidence that the local Union Council had taken steps against the harassment by the local Muslims.  As for the alleged connection between Jakir and the BNP, the Board noted from the COI that people connected to the BNP are not above the law.  The Board was therefore satisfied that state protection is available. 

21.The Board also considered that as a man in his forties with business experience, the Applicant may safely relocate to other parts of the country such as Dhaka to reduce or negate the perceived risk upon his return.

22.The Board therefore dismissed the Applicant’s appeal against the Notice and upheld the decision of the Director in refusing his claim based on Torture Risk, BOR 3 Risk and Persecution Risk grounds.  

The finding of the Board in the 2019 Decision

23.At the hearing of the appeal against the Further Notice on 2 November 2018 based on BOR 2 risk, the Applicant testified that while in Sham Shui Po, he heard two Bangladeshi men talking about the kidnap of his brother by Jakir.  They told him that his brother could not be found for a long time and might have been killed or imprisoned by Jakir.  When asked when the kidnapping occurred, the Applicant replied “At present.  2 years”. 

24.The Board found that if the kidnapping allegation was advanced to support his BOR 2 Risk claim, the Applicant should have furnished this piece of information to the Director before 11 April 2017 which was the deadline for providing additional information to the Director in relation to his BOR 2 claim.  But he did not. In any event, it was merely hearsay evidence and the two men were themselves not sure if the Applicant’s brother had in fact been harmed by Jakir.  The Board therefore gave no weight to this piece of information.

25.The Board found that no additional information had been advanced by the Applicant.  It considered that the findings in its 2017 Decision is binding and applicable, namely that the risk of harm from Jakir was low and that there was no risk of harm from the local Muslims.  Applying the law applicable to non-refoulement protection under BOR 2 Risk, it found that the Applicant will not face a real risk of being subjected to BOR 2 ill-treatment upon his return to Bangladesh.  The Board therefore dismissed his appeal against the Further Notice and upheld the Director’s decision in refusing the Applicant’s BOR 2 Risk claim. 

Legal principles applicable to judicial review

26.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[6].

Grounds for judicial review

27.The Applicant did not state any specific grounds for judicial review in the Form 86 or in his supporting affirmation.  He had been invited by the Court via its letter dated 4 March 2022 to advise the Court of his first language and to file submissions.  He did not respond.  The letter was sent to him by post to his address as stated in his supporting affirmation dated 16 April 2019.  It has not been returned through the post.  There was nothing to suggest the Applicant had moved or has not received the letter.

28.In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  The essence of the Applicant’s complaint is that he disagrees with the finding of the Board that it is safe for him to return to his home country.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Bangladesh.  That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

Conclusion

29.Having rigorously examined the Decision, 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 BOR 2 Risk ground.  The Board clearly understood the burden of proof and standard of proof and had correctly identified the issues.  There was nothing to suggest it had failed to observe a very high standard of fairness.  In its 2017 Decision, the Board assessed the Applicant’s claim on the basis of the case as he asserted but found on the basis of credible COI that he had failed to prove the factual basis to support of his claim.  It found that the risk of harm from Jakir was to be low; that there was no risk of harm from the local Muslims; and that state protection and internal relocation were viable options to prevent or avoid the harm.  These findings are binding on the Applicant.  Other than the hearsay evidence about his brother’s kidnap, the Applicant had not provided any additional information to support his BOR 2 Risk ground.  As for the evidence about his brother’s kidnap, it was not provided before the deadline imposed by the Director.  For good reasons, the Board gave no weight to that evidence, which it was entitled to.  It was on that basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under BOR 2 Risk ground.  These are finding of facts which are 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 Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The 2019 Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  It was utterly without fault.  The proposed judicial review has no realistic prospect of success. 

30.For the above reasons, leave to apply for judicial review was refused.

Dated 13^th day of July 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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ

[6] [2018] HKCA 524 at para 14(1)