Molla Omur Faruq v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 795/2019

[2023] HKCFI 1211

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 795 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 6 March 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”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Bangladesh. He entered Hong Kong illegally on 29 January 2015 and surrendered himself to the Immigration Department on the same date. On 9 April 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his enemies due to a land dispute.

5.In brevity, the applicant claimed that some members of the Awami League (“AL”) had been attempting to occupy his family land. Early in 1993, they already attacked and killed the applicant’s siblings who resisted the forcible occupation of the land. In 2005, the applicant’s father was assaulted by the enemies. Feared for the applicant’s safety, his family urged him to go abroad. After a few years in Saudi Arabia, the applicant returned home in 2014. Upon knowing his return, the enemies gathered around his house and wanted to catch him as he was the eldest son in the family. Out of fear, the applicant eventually fled to Hong Kong for protection. He was also informed by his father that the enemies knew his whereabouts and would capture him upon his return. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 17 May 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 as the level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) the absence of past ill-treatments indicated an unlikelihood of future risk of harm [11]-[13]; (ii) the intention of his enemies was to occupy the land, not to harm him [14]-[16] (iii) state protection would be available to him [17]-[20]; and (iv) internal relocation was a viable alternative [21]-[26].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 11 September 2018 and 3 October 2018, the Board conducted an oral hearing for his appeal, during which he testified [14].

9.The Board recapped the applicant’s claim and his personal background. It also clarified the material aspects of his claim [72]-[117]. The Board considered that some aspects of his claim, such as his personal information, and the immigration history, were certain, probably true or could be attached with some credence [133]-[149]. Nevertheless, in assessing the individual grounds, the Board found that the applicant and his family members were never targeted by the AL; and that his political profile was of no interest to the AL [167]. It also considered the country of origin information and found that the applicant failed to prove that he could not receive state protection [169]-[171]. In addition, the applicant was never inflicted with any harms by his enemies [172]. As such, the Board rejected the applicant’s claim on Torture risk. Further, the Board found that internal relocation was a viable option [208].

10.For the aforesaid findings, the Board rejected the applicant’s claim on the remaining grounds and dismissed his appeal.

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

11.The applicant has filed Form 86 dated 21 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant enclosed a copy of the Board’s Decision without raising any specific ground.

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 Decisions 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 Board had assessed his evidence and found that he would not be subjected to any risk as he claimed if he returned to his country. There is no valid reason from the applicant 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 11^th day of May 2023

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