Sumon Mohammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 1062/2019[2022] HKCFI 2908

Court

High Court CFI

Date07 Nov 2022

Judge—

Case Document

100%Judiciary

HCAL 1062/2019

[2022] HKCFI 2908

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1062 of 2019

BETWEEN
	Sumon Mohammad	Applicant
	and
	Torture Claims Appeal Board/	Putative Respondent
	Non-refoulement Claims Petition Office
	and
	Director of Immigration	Putative Interested Party

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 the 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 28 March 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 date was fixed for the applicant to attend Court. However, he did not turn up without any prior notice to the Court. The Court will deal with his application on paper.

The applicant

3.The applicant is a national of Bangladesh. He entered Hong Kong illegally on 12 December 2015 and was arrested by the police on 13 December 2015. On 19 December 2015, 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”) because he participated in a campaign of the Bangladesh Nationalist Party (“BNP”) in January 2015.

4.According to the applicant, he had been a loyal member of the BNP. In January 2015, the BNP leaders summoned its followers to block the traffic and close down all the official establishments including the government offices in Bangladesh. The applicant was one of the active participants. Thereafter, in February 2015, the participants were attacked by the AL members and arrested by the local police. The applicant was also beaten by the police and the members from the young wing of AL. While he later went into hiding, he was told that the BNP members were arrested by the police and subsequently disappeared. Out of fear, he fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 10 May 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

5.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”).

6.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) the low level of ill-treatments from AL in the past indicated an unlikelihood of future risk of harm [14]-[17]; (ii) state protection would be available to him [18]-[24]; and (iii) internal relocation was a viable option [25]-[28].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 15 January 2019, the Board conducted an oral hearing for his appeal.

8.The Board considered the applicant’s claim and his appeal [26]-[46]. Having assessed all the evidence, the Board concluded that the applicant’s claim lacked credibility [74]. In particular, the Board noted that the applicant should have knowledge of the local politics and be able to provide details of the events surrounding the 2015 campaign if he was as actively involved as claimed [74]-[76]. Despite the Board accepted the truthfulness of the 2015 campaign and the fact that the BNP activists were arrested between January and March 2015, it refused to accept that the applicant was among those activists due to his lack of understandings of the local politics and of the relevant events [81]-[85].

9.On this premise, the Board concluded that there was no evidence to substantiate the applicant’s claim and thus dismissed his appeal.

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

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

11.In his affirmation and a statement attached to Form 86 in support of his application, the applicant set out a litany of grounds, which I shall summarize below.

(1)  The hearing bundle was given to him shortly before the hearing. The contents of the bundle are in English and he did not have interpretation assistance.

(2)  Because of the shortage of time for his preparation for the hearing, he was confused at the hearing.

(3)  However, he had answered all the questions from the Board.

(4)  The Board did not notify him its decisions by phone although it was expressly requested to do so.

(5)  The Board relied on the source of news which is not officially recognized or is simply hearsay. It also relied upon outdated cases.

(6)  There was no screening for BOR 2 risk.

(7)  The Board’s Decision is wrong as the adjudicator had not visited his country to understand his situation.

(8)  The Board had unlawfully fettered his discretion.

(9)  The adjudicator had acted in a procedurally unfair manner in dealing with the appeal.

(10)  The Board’s Decision is unreasonable and irrational.

(11)  The Board failed to meet the greater care and duty owed to a self-represented claimant.

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 Decision 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.As to the grounds in paragraph 11 above, grounds (1) to (3) are in relation to the shortage of time the hearing bundle was given to him. However, there was no application from him to the Board for an adjournment of the hearing. He said he had answered all the questions the Board raised with him. This means that he was not confused at the hearing. Ground (4) is a non-point. The law does not require the Board to notify him its decision by phone. Ground (5) is his bare assertion or his opinions without any evidence in support. Ground (6) does not assist him because the law does not require another screening process as there had been one before; and finally ground (7) is not a valid reason for his complaint. The Board can rely on the country of origin information and does not have to go to his country to understand the situation there. Grounds (8) to (11) are his personal opinion without any evidence in support. All grounds fail.

16.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.

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

CONCLUSION

18.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 7^th day of November 2022

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 7 November 2022 Sumon Mohammad Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 7 November 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 11768/18/5/353/B1271 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1055/18 (Formerly RBCZ 10227/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)