Habibur Rahman Mohammed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1016/2019

[2023] HKCFI 2630

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1016 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 present in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 29 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”), he appeared before the Court on 15 February 2023.

The applicant

3.The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 19 July 2015 and surrendered to the Immigration Department on 21 July 2015.  On 24 March 2016, 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 the Awami League (“AL”).

4.According to the applicant, he was an ordinary member of the Jamaat-e-Islami (“JI”) which was the opposite party of the AL.  The senior members who ran the JI in the applicant’s locality included Aziz, someone who the applicant respected as an elder brother.  Aziz and the applicant had been protesting against the illegal smuggling activities carried out by the AL people.  On 5 May 2013, Aziz called on a rally which the opposing parties of the AL attended.  The main goal was to protest the AL, the current ruling party, for failing to consider certain proposals.  On the date of the rally, the ruling party called for a combat and all the transportation was blocked. Meanwhile, for those who attended the rally, they were ill-treated by the government. 

5.In mid-2013, Aziz was captured by 14 or 15 attackers on his way from the prayer.  He was taken to Kulashar village.  Aziz’s family attempted to seek help from the party leader and the police but it was of no avail.  Later, someone phoned Aziz’s family and demanded ransom.  After the money was paid, Aziz was released but he was severely beaten up.  He subsequently passed away.

6.After Aziz’s death, the applicant and the fellow members could not do anything as the AL had control over the area.  Meanwhile, the police did not take any actions upon Aziz’s family’s complaint. 

7.A few days later, the AL attended every JI households and requested the applicant and others to agree to enroll in the AL.  They also stated that they killed Aziz and if the applicant refused to join their party he would face the same fate as Aziz.  At his father’s advice, the applicant worked with the AL. Nevertheless, he still kept up with the prayers of JI and did not participate in the gatherings or rallies of the AL.  One day, the AL members threatened to kill the applicant if he refused to add his name on the AL enrollment list. 

8.A week later, while the applicant and his father were in a restaurant, he was pointed by the AL members with a gun.  They threatened to kill him if he still refused to enroll his name.  He believed that the threats occurred because he refused to join the AL’s money extorting activities.  To avoid the harassment, the applicant decided to escape to other villages before fleeing to Hong Kong for protection.  While he was in Hong Kong, he was informed that the AL members continued to harass and threaten his family.  His father was assaulted by the AL member on 4 July 2017.  Details of his claim are set out at paragraph 7 of the Notice of Decision dated 1 August 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

9.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”).

10.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that (i) the AL people showed no real intention to carry out the death threats against him [14]-[29]; (ii) state protection would be available to him [30]-[38]; and (iii) internal relocation was a viable option [39].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board.  On 3 September 2018, the Board conducted an oral hearing, during which he was assisted by an interpreter in the Bengali and English languages [4].

12.The Board recapped the applicant’s claim and his evidence before the Director [25]-[49] and the further information provided in his notice of appeal/petition [50].  At the outset, the Board considered the applicant’s credibility.  It decided to accept certain aspects of his claim, such as the protests against the illegal smuggling in his locality and the death of Aziz, because the evidence on these aspects were relatively detailed [56]-[59].

13.Nevertheless, the Board found that the applicant’s claimed membership with the JI was vague and unpersuasive [60]-[66].  He was able to provide a relatively detailed account on the protests against the illegal smuggling [67]-[69], as well as the death of Aziz [70]-[74].  In these premises, the Board was willing to accept that the applicant and his family might be supporters of the JI and he might have attended the rally in May 2013 [75].  However, due to the applicant’s limited knowledge of the JI, the Board cast doubt on his level of involvement and his claimed participations of rallies and gatherings. Meanwhile, despite the Board accepted the truth of Aziz’s death, it refused to accept that his death was linked to the rally held in May 2013 as alleged by the applicant [76]-[82].  

14.In addition, the Board decided to give the applicant the benefit of doubt that the AL members might connect the applicant with the JI and Aziz [84].  It also accepted that the AL warned the applicant not to interfere with the illegal smuggling and forced him to join the AL, a demand which the applicant agreed.  It further accepted that the AL members became suspicious after the applicant refused to participate in the money extortion activities [85].

15.The Board also accepted that the applicant went to live in another village after the threat.  But it rejected the assertion that the AL members had located him [87].  Yet, the Board accepted that the AL might harass the applicant’s family. 

16.In light of the above findings, the Board considered that it was plausible that the applicant would face future risk of harm due to his association with protest actions against illegal smuggling and his previous support for the JI [89].  It also considered that the applicant might not receive sufficient state protection in his home area [90].

17.However, the Board also found that, the COI had shown that only the leaders or the active members of the JI were the targets and the applicant, as a low level JI supporter, the AL members would not seek him out through Bangladesh.  Having considered all the relevant circumstances, the Board was satisfied that the applicant’s risk of being targeted by the AL members was a localized risk only and internal relocation to Dhaka, Chittagong or near his relatives in Feni district was a viable option for the applicant [91]-[106].

18.In light of the availability of internal relocation, the Board rejected the applicant’s claim and dismissed his appeal.

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

19.The applicant has filed Form 86 dated 15 April 2019 for leave to apply for judicial review of the Board’s Decision.

20.The applicant has raised the grounds below in support of his application.

a.  The hearing bundle was delivered to him shortly before the Board’s hearing and there was no interpretation service for the documents in English. He was therefore confused. However, he had answered all the questions from the Board.

b.  The Board had relied upon the source of news which is not officially recognized or it is simply hearsay and cases which are fairly outdated, resulting in the Board making groundless speculations that it is safe for him to return to his country.

c.  The Board did not notify him of its decisions by phone, as requested.

d.  BOR 2 risk was assessed without any screening process.

e.  The adjudicator had not been to his country to understand the real situation there. Its decisions are therefore wrong and unfair.

f.  The Board was procedurally unfair and failed to meet greater care and duty to a self-represented claimant.

DISCUSSION

21.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).

22.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he only wanted the Court to re-consider his claim.

23.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.”

24.The Board has carefully considered the applicant’s situations and came to its conclusion that internal relocation is a viable and reasonable option open to him.

25.The applicant’s grounds in paragraph 20 cannot assist him. Ground (a) fails as he was not entitled to interpretation service at any stage of his application. He had already had free legal representation at the screening stage. His allegation that he was confused at the Board’s hearing is not relevant because he did not raise this issue before the Board for more time to prepare for his appeal and he was able to answer all the questions put to him by the Board. Ground (b) is only his bare assertion without any evidence in support of it. Ground (c) is irrelevant as the Board has no duty under the law to notify him by phone and he had received the Board’s notification of the Board’s Decision. Ground (d) fails because there is no statutory requirement for screening for BOR 2 risk, particularly after the screening for the other risks. Ground (e) fails because it is unnecessary for the adjudicator to go to his country to understand his situation. The adjudicator had relied on the COI, which she was entitled to do so. Ground (f) is only his bare assertions or opinion without any evidence in support.

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

CONCLUSION

27.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 2^nd day of November 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