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

HCAL 2516/2018

[2022] HKCFI 2881

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2516 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 October 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 on 17 March 2006 as a visitor and was permitted to stay until 31 March 2006.  He did not depart and had overstayed since 1 April 2006.  He raised a refugee claim with the United Nations High Commissioner for Refugees.  On 2 May 2007, he was arrested by the police for overstaying.  On 9 June 2007, he lodged a torture claim but withdrew the claim on 22 March 2013.  On 23 July 2013, he lodged a Cruel, Inhuman or Degrading Treatment and Punishment claim (“CIDTP claim”). His CIDTP claim was taken as a non-refoulement claim and assessed on all applicable grounds other than that on torture risk[1].

5.The applicant based his claim on the fear that, if refouled, he would be harmed or killed by his business partner, Md Shamim, and three creditors, Md Aslam, Shopon, and Motin Master.  The applicant stated that he partnered with Shamim in setting up a garment business in 2005.  To fund his contribution in the business, he took the loans from Aslam, Shopon and Motin respectively. However, in January 2006, Shamim absconded with their profits.  He had no options but defaulted the loan repayments.  The creditors started to threaten him and chased for payments.  In the end of January 2006, the applicant was abducted.  He was detained and severely assaulted by the people who demanded him to repay the money.  They also asked the applicant not to chase or attempt to locate Shamim.  After he was released, the creditors visited, and threatened to kill him if he could not repay the loans.  Out of fear, the applicant fled to Hong Kong for protection.

6.On 15 October 2013, the applicant wrote to the Immigration Department to withdraw his torture claim as he thought that the problem was resolved. However, his mother informed him that Motin was still looking for him.  In March 2016, the applicant was engaged with a girl from the neighboring family and he planned to return in February 2017.  However, he was caught and sentenced to imprisonment in Hong Kong.  In June 2017, Motin learnt about the engagement and visited his family.  The girl’s family, upon knowing the applicant’s issue, broke the engagement.  As the threats from the creditors were on-going, the applicant stayed in Hong Kong for protection.  Details of his claim are set out at paragraph 8 of the Notice of Decision dated 27 September 2017 by the Director (the “Director’s Decision”).      

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon refoulement was assessed to be low.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated no real or foreseeable risk of harm [16]-[18]; (ii) state protection would be available to him [19]-[21]; and (iii) internal relocation was a viable alternative [22]-[28].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board.  On 20 September 2018, the Board conducted an oral hearing for his appeal, during which he clarified aspects of his claim with the assistance of an interpreter [13].

10.The Board considered the applicant’s evidence given before the Director and during the hearing [24]-[55].  It concluded that the applicant’s claim was entirely unreliable.  In particular, his evidence was inherently inconsistent [57].  He contradicted himself about the funds required for his garment business and about the injuries he sustained during the detention.  He also provided different accounts as to the threats from the creditors, as well as whether his mother was assaulted by Motin.  He also omitted Motin’s influential background in his non-refoulement claim form.  Considering these inconsistencies as a whole, the Board cast doubt on the applicant’s credibility.

11.On the basis of lack of credibility, the Board rejected the applicant’s claim and dismissed his appeal.

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

12.The applicant has filed Form 86 dated 9 November 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant said he considers that the Board had made its Decision on assumption and he was not heard before the Board made its Decision.

DISCUSSION

14.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).

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

16.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.”

17.The first ground in paragraph 13 above is his opinion only without any evidence in support. He had attended before the Board and given evidence. There is no valid reason to challenge the Board’s Decision.

18.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.

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

CONCLUSION

20.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