Azizul Rari v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2179/2018

[2022] HKCFI 2737

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2179 OF 2018

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 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 September 2018 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.

3.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

4.The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 1 March 2014 and was arrested by the police on 21 March 2014 for being an illegal immigrant.  On 23 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 members of Awami League (“AL”).

5.According to the applicant, he was the general secretary of the Bangladesh Nationalist Party (“BNP”) and responsible for promoting the party.  One day in late 2004, he and some BNP associates were attacked by some AL members, during which the applicant sustained back injury.  Since then, the applicant had encountered three more times with the AL members in 2005, 2006 and 2008 respectively and, on one occasion, he was assaulted whilst on the other two occasions, he only received verbal threats.  In 2011, his friend told him that the AL formed a government and had been targeting the BNP leaders and workers. Out of fear, the applicant fled to different cities, countries and eventually to Hong Kong for protection.  Details of his claim are set out at paragraph 7 of the Notice of Decision dated 21 April 2017 by the Director (the “Director’s Decision”) and paragraphs 47 to 84 of the Board’s Decision.   

The Director’s Decision

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

a.  risk of torture under Part VIIC 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 (Risk of violation of the right to life) (“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 Decision, the Director dismissed the applicant’s claim on the basis that the level of risk of harm upon refoulement was assessed to be low.  In elaboration, the Director found that (i) his assertion of being targeted by the AL was a mere speculation [14]; (ii) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [15]-[16]; (iii) state protection would be available to him [17]; and (iv) internal relocation was a viable alternative [18].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 3 September 2018, the Board conducted an oral hearing for his appeal.  The applicant indicated that he did not wish to answer any questions [85].

9.Having reminded itself with the relevant legal principles and considered the applicant’s evidence, the Board made the following findings.  First, the previous conducts did not indicate a future risk of harm.  The Board observed that the applicant was assaulted twice but did not sustain serious injuries on both occasions [107].  In the other encounters, the applicant was only verbally threatened, which showed that the AL members had no real intention to harm or even kill him [109]-[110].  The Board also noted that, since AL was in power, there was no reason why they would be interested in the applicant [111]-[115]. Secondly, after reviewing the country of origin information, the Board found that state protection and internal relocation were both viable alternatives for the applicant [116]-[149].  As a result, the Board rejected the applicant’s claim and dismissed his appeal.

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

10.The applicant has filed Form 86 dated 10 October 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant said that he had no lawyer to assist him and that the Board made the decision without considering his evidence seriously and just made the inference.

DISCUSSION

12.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).

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

14.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.”

15.The Court notes that the applicant refused to answer questions from the Board. The Board was entitled to consider his case on the evidence available before it. I shall take into consideration the following factors under those circumstances:

(1)   The applicant is obligated under the Ordinance to cooperate with the Director and the Board for the assessment of his claim under section 37ZA (1)(a).^[1]

(2)   As the law imposes an obligation on him to make prompt and full disclosure of all material facts in support of the claim, his refusal to do so is in contravention of the statutory provision and he must bear the consequences. In my view, high standards of fairness give no exemption to the applicant for the compliance of the Ordinance.

16.Those grounds in paragraph 11 above are not valid reasons to challenge the Board’s Decision. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22]. The Board was entitled to reach its decision as it did in this case. The Board has given its reasons for the finding of the facts.

17.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.

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

CONCLUSION

19.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 14^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