Shahazada Arman v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1108/2019

[2022] HKCFI 2746

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1108 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 16 April 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….”

5.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.

6.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

7.The applicant is a national of Bangladesh. He last entered Hong Kong on 22 September 2005 and was permitted to stay as a visitor until 6 October 2005. He did not depart and had overstayed since 7 October 2005. On 4 June 2006, he was arrested by the police for overstaying. On 8 June 2006, he lodged a torture claim which was rejected on 28 November 2012. The subsequent petition was also dismissed on 5 February 2013. On 22 July 2013, he lodged a cruel, inhuman or degrading treatment or punishment claim which was taken as a non-refoulement claim and assessed on all applicable ground other than the torture risk[1].

8.His claim was made on the basis that, if refouled, he would be harmed or killed by Ponesh and other members of Bangladesh Nationalist Party (“BNP”). He also feared that he would be in trouble because of his friendship with Rubel, an armed terrorist. In addition, he feared that he would be sentenced to imprisonment.

9.According to the applicant, he became an ordinary member with the Awami League (“AL”) in 1993 and was responsible for gathering people and recruiting new members. These activities were also carried out while the BNP was in power. In 1996, the applicant attempted to prevent people from voting in a biased election held by the BNP. He was later revenged by the BNP members. Incidents of the revenge included the sabotage of his father’s shop and the attack of the family members. Thereafter, AL won an election and the applicant also went overseas. In 2000, he returned to Bangladesh and involved in the political activities with AL again. Ponesh, a local president of Jubo Dal of the BNP, invited him to join BNP. Met with the applicant’s refusal, Ponesh did not stop harassing him. After the BNP came into power, Ponesh framed false cases against the applicant, which led to his detention for 13 days. In June 2004, the applicant was again falsely accused and brought to the police station, during which he was ill-treated by the police officer. The applicant was released upon his family’s payment of bribes to the police officer but the case against him was still pending. Later in August 2005, the police officers came to the applicant’s house again with the aim to catch him. While he escaped, he heard from his father that the police officers would shoot him if he was found.

10.On 2 September 2005, the applicant was also informed by Rubel that the police were looking for him due to his connection with Rubel. Out of fear, he fled to Hong Kong for protection. In his last contact with his family in 2015, the applicant was told that he was still a wanted person and his enemies continued to look for him. Details of his claim are set out at paragraph 8 of the Notice of Decision dated 31 August 2015 by the Director (the “Director’s First Decision”) and paragraphs 20 to 75 of the Board’s Decision.

The Director’s Decisions

11.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”).

12.By way of the Director’s First Decision, the Director dismissed the applicant’s claim on BOR3 risk and Persecution risk on the basis that the level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) there was no evidence suggesting that the BNP still had interest in the applicant [15]; (ii) the alleged ill-treatments did not attain a minimum level of severity [16]-[17]; (iii) state protection would be available to him [18]; and (iv) internal relocation was also a viable alternative [19]-[22]. Independently, the Director also found that the applicant’s claim lacked credibility [23].

13.For reasons set out in the Notice of Further Decision dated 8 June 2017, the Director also rejected the applicant’s claim on BOR 2 risk (the “Director’s Second Decision”).

14.For simplicity, the Director’s First Decision and the Director’s Second Decision are referred to collectively as “the Director’s Decisions”.

The Board’s Decision

15.The applicant appealed the Director’s Decisions to the Board. On 7 November 2017, the Board conducted an oral hearing for his appeal, during which he was given the opportunities to clarify and made submissions for his claim [13].

16.The Board considered the applicant’s overall credibility to be questionable [77]. In particular, the Board noted that the applicant’s evidence on the material aspects of his claim was inconsistent and was not cogently explained by the applicant at the hearing [79]. It also cast doubt on the applicant’s evidence on the trip to Dubai which was inherently contradictory [80]-[87]. It observed that the applicant failed to provide detailed evidence on the AL, unlike someone who claimed to be actively involved in AL’s activities [92]-[94]. Further, his evidence on the election was inconsistent with the country of origin information [95]-[101]. Besides, a large amount of his evidence was based on hearsay information or speculations [102]-[106]. For the supporting documents submitted by the applicant, the Board found that, apart from the document obtained from the hospital in Hong Kong showing the impairment of the applicant’s eyesight, the rest were not reliable [107]-[121].

17.In light of the lack of credibility in the applicant’s evidence, the Board rejected his claim and dismissed his appeal.

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

18.The applicant has filed Form 86 dated 25 April 2019 for leave to apply for judicial review of the Board’s Decision.

19.In his affirmation in support of his application, the applicant only reiterated the facts he came to Hong Kong without any specific ground.

DISCUSSION

20.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).

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

22.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.”

23.The applicant has raised no valid reason to challenge the Board’s Decision.

24.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.

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

CONCLUSION

26.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 6^th day of September 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