Ali Mohasin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1069/2019

[2022] HKCFI 2878

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1069 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 12 April 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.

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 21 December 2014.  On the same date, he was arrested by the police for being a suspected illegal immigrant.  On 25 December 2014, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Kaosar, Manik and other members from the Awami League (“AL”).  He also feared that he would be arrested by the local police.

5.According to the applicant, he became a member of the Bangladesh Nationalist Party (“BNP”) in 2000 and was later promoted to the president of its young wing in 2014.  The applicant stated that the first incident happened in 2012 when he was assaulted by Kaosar, Manik and some of the AL members with bare hands.  After the incident, he escaped to another village.  However, in 2013, Manik located his whereabouts and threatened to kill him if he refused to meet them at the party club.  In the same year, the applicant’s protest against the AL was halted by the AL members and the local police.  His attempt to seek help from the minister of parliament was of no avail.  In 2014, the applicant was again threatened by Kaosar.  Later in July 2014, he was arrested by the police and he suspected that it was a false accusation filed by the AL members.  While he was bailed out, the local police laid an official charge and started to search him.  On 8 December 2014, the applicant was again assaulted by Kaosar and Manik after his refusal to pay the extortion.  Out of fear, he eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 20 July 2018 by the Director (the “Director’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 (“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 Decision, the Director dismissed the applicant’s claim 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) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [14]-[16]; (ii) state protection would be available to him [17]-[21]; and (iii) internal relocation was a viable option [22]-[27].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 8 November 2018, the Board conducted an oral hearing for his appeal. Nevertheless, the applicant declined to answer the Board’s questions.  After expressing its concerns of not having the applicant’s clarifications over the questionable evidence, the Board proceeded to consider his claim on the available information [63].

9.At the outset, the Board considered that the documents submitted by the applicant, namely, the medical note and letter from the president of BNP, did not support his claim [66]-[67].  The Board also noted that he provided inconsistent evidence as to the two assaults [68]-[69].  In addition, the Board listed out the applicant’s evidence which were based purely on hearsay information and speculations [70]-[74].  Further, the Board found that state protection would be available to the applicant and that the claimed risk of harm did not involve any state actors [76]-[78].  In any event, internal relocation was also viable [79]-[81]; [89].  As a result, the Board found that the applicant’s claim lacked credibility.

10.In assessing the individual grounds, the Board found that Kaosar, Manik and other AL members were not acting in an official capacity and that the applicant could seek assistance from the government authorities [88].  Coupled with the finding that internal relocation was available, the Board rejected his claim on Torture risk.  For the same reasons, the Board also rejected his claim on the remaining grounds.  Thus, the applicant’s appeal was dismissed.

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

11.The applicant has filed Form 86 dated 23 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant reiterated his factual story and complained that the Director had not properly considered his claim.

DISCUSSION

13.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).

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

15.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.”

16.The ground in paragraph 12 is only his opinion and it is not valid reason to challenge the Board’s Decision.

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 20^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