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

HCAL 650/2019

[2022] HKCFI 2582

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 650 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 24 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for him. However, due to COVID-19 pandemic, the government discouraged social gathering and the court had to suspend hearings for a period of time. The court sent a letter to the applicant and invited him to make further submissions in order to dispense with hearing in court. The letter further said that if he takes the view that it is not possible to make written submissions in place of oral hearing, he should so inform the court, stating his reasons why this is the case and if he does not respond to the letter within 7 days, the court will proceed to consider his application on paper. The written decision will be sent to the applicant in due course.

3.The applicant did not respond to the court’s letter.

4.Under Order 53 rule 3(3) of the RHC, it provides:

“The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application….”

Under Order 1A rule 1(b) of the RHC, the underlying objectives of the rules are to ensure that a case is dealt with as expeditiously as is reasonably practicable. Under Order 1B rule 1(l), the court has the power to take steps to make any order for the purpose of managing the case and furthering the underlying objectives set out in Order 1A. I consider that the court has the power to dispense with open hearing of the applicant’s application without doing injustice to his application. I therefore proceed to consider his application on paper.

5.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

6.The applicant is a national of Bangladesh. He entered Hong Kong illegally on 20 August 2007. On the same date, he was arrested by the police. On 3 January 2014, he lodged a non-refoulement claim after his previous torture claim was rejected on 11 November 2013. His non-refoulement claim was therefore assessed in all applicable grounds other than the ground of torture risk[1]. The applicant claimed that, if refouled, he would be harmed or killed by members of Bangladesh Nationalist Party (“BNP”) and the Bangladesh police officers.

7.According to the applicant, in December 2003, his cousin was stabbed by some BNP members. The attack was reported to the police and the applicant was asked to be the witness of the case. In the end of March 2004, the defendants visited the applicant’s house, assaulted him and threatened him that he would be killed if he attended the trial. Under the constant threats, the applicant escaped to Dhaka. In May 2006, the former leader of BNP was killed. The applicant was framed by the defendants to be the killer. The police thus issued a warrant of arrest against the applicant. Fearing that the defendants would revenge and that he would be arrested and beaten to confession by the police for the false murder case, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 8 of the Notice of Decision dated 9 August 2016 by the Director (the “Director’s First Decision”) and paragraphs 26 to 89 of the Board’s Decision.

The Director’s Decisions

8.The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  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

c.  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”).

9.By way of the Director’s First Decision, the Director dismissed the applicant’s claim on BOR 3 risk and Persecution risk on the basis that the level of risk of harm upon his refoulement was assessed to be low. In elaboration, the Director found that (i) there was no evidence that the BNP or the government involved in the alleged dispute [17]; (ii) the alleged ill-treatments did not attain the minimum level of severity [18]; (iii) there was no evidence that the defendants were connected with the police [19]; (iv) state protection would be available to him [20]-[25]; and (v) internal relocation was a viable alternative [26]-[30].

10.On 20 July 2017, the Director handed down the reasons for dismissing the applicant’s claim on BOR 2 risk as he failed to show that his right to life would be violated upon refoulement (the “Director’s Second Decision”).

11.For simplicity, 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

12.The applicant appealed the Director’s Decisions to the Board. On 31 August 2018, the Board conducted an oral hearing for his appeal, during which he was legally represented and gave evidence before the Board.

13.Having considered all the evidence and the parties’ submissions, the Board made the following findings. The Board found that the core aspect of his claim was doubtful and lacked credibility [91]. On his own evidence, the applicant conceded that most of his assertions were based on hearsay information [92]-[96]. The Board also considered the documents submitted by the applicant to be questionable, which further damaged his credibility [97]-[101]. As a result, the Board refused to attach any credence to his version of past events.

14.Therefore, the Board rejected the applicant’s claim and dismissed his appeal.

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

15.The applicant has filed Form 86 dated 7 March 2019 for leave to apply for judicial review of the Board’s Decision.

16.In his affirmation in support of his application, the applicant said the Board’s Decision was wrong. It had taken into consideration source of news which are outdated, not officially recognized or simply hearsay, resulting in its speculation that he is safe to return to his country. The BOR 2 risk was assessed without screening process. The Board should have visited his country to understand the situation there itself.

DISCUSSION

17.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

19.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.”

20.Those grounds in paragraph 16 above are not valid reasons to challenge the Board’s Decision. There was no screening process for BOR 2 risk to be assessed because screen process had been done for the other risks. The other grounds are his bare assertions or opinions without any evidence in support. The Board can always rely upon the COI for the situation of his country without going there personally.

21.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.

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

CONCLUSION

23.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 19^th day of August 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