Hossain Shakhawat v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1404/2019

[2023] HKCFI 2665

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1404 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 21 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, he appeared before the Court on 7 August 2023.

The applicant

3.The applicant is a national of Bangladesh.  He was arrested by the police for being an illegal immigrant on 14 February 2016 and was referred to the Immigration Department.  He admitted that he came to Hong Kong illegally via Mainland China on the same date.  He lodged his non-refoulement by written signification on 3 March 2016 on the basis that, if refouled, he would be harmed or killed by members of the Bangladesh Chhatra League (“CL”), an associated organization with the Awami League (“AL”).

4.In brevity, the applicant had attempted to start a business by purchasing leftover fabrics from a garment factory, but a member of the CL (“Mizanur”) intervened to stop the transaction.  Mizanur claimed that those leftover fabrics were within the domain of the CL and threatened the applicant not to do business with the garment factory.  On 16 November 2014, members of the CL arrived at the applicant’s home and verbally threatened him to cease his business attempt.  He did not desist and proceeded with the business transaction. However, when he was about to give funds to the owner of the garment factory on 20 November 2014, members of the CL were waiting for the applicant at the entrance.  They attacked him as he entered the main gate and he was unable to enter the factory.  He had sought help from the police but to no avail.  In the evening of 23 November 2014, the applicant and his associates got into a physical altercation with members of the CL.  Nearly three weeks later, members of the CL arrived at the applicant’s home and beat him up.  He suffered open wounds and bruises on his head, face and limbs but he did not require hospitalization.  In order to flee from danger, he left home and stayed at various places until 2016, when his maternal uncle suggested to him to leave Bangladesh and seek asylum in Hong Kong. Details of his claim are set out at [6] of the Notice of Decision dated 11 July 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.  In elaboration, the Director found that: (i) the low intensity and frequency of past ill-treatment from members of the Mizanur and members of the CL is indicative of a low risk of harm upon his return to Bangladesh [12]; (ii) the fact that he was able to remain relatively safe for over a year after the attack incidents further showed Mizanur and the CL are unlikely to have resources to chase him down, further indicating any future risk of harm to be low [13]; (iii) state protection would be available to him [16] – [18]; and (iv) internal relocation was a viable option which further lowered or negated the perceived risk [19] – [24]. 

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 24 Apri1 2019, the Board conducted an oral hearing for his appeal, during which he elected to give evidence.

8.The Board recapped the applicant’s claim and his personal background [9] – [36].  In essence, the Board found the applicant had failed to prove the facts of his claim, as inconsistencies were found amongst his testimonies [38].  These were exemplified by the following findings of Board, such as: (i) the applicant would unbelievably be willing to remain home after the retaliation against the CL and only left after getting beaten up [40] – [42]; (ii) he claimed he continued to suffer harm from the CL, but the business deal with the garment factory had ceased and he was beaten at his own home for his retaliation attack; hence there should no longer be a problem for the CL [44]; (iii) there was no need for him to flee Bangladesh as the perceived harm was localized at his home village and he was able to sufficiently and safely move around outside his home area [45]; and (iv) based on credible and objective country of origin information and the rejection of the version of events with the CL, the Board did not accept the letter from a member of the Bangladesh Nationalist Party who purported to show the applicant was in danger as he was a supporter of the party [46] and [47].

9.The Board nevertheless proceeded with the applicant’s claim under the applicable grounds of non-refoulement protection [50] – [90].  Having considered the evidence, the Board found the applicant’s claim under each of the aforesaid grounds to be unsubstantiated [95] and further held that internal relocation to other regions of Bangladesh would not be unreasonable or unduly harsh [94].

10.In light of the above findings, the Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

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

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

(1)  The bundle of hearing was delivered to him a few days before the Board’s hearing and the documents were in English. He did not have sufficient time to prepare has case. Nor did he have interpretation service. He was therefore confused at the hearing. However, he had answered all the questions put to him by the Board. But the Board challenged his credibility.

(2)  The Board had failed to notify him of the Board’s Decision by phone despite his special request.

(3)  The Board had relied upon source of news which is not officially recognized or it is simply hearsay. It had also relied on outdated cases. All of these resulted in the Board’s speculations that if is safe for him to return to his country.

(4)  It is unfair for there being no screening process for this BOR 2 risk assessment.

(5)  The Board had not been to his country to understand the situations there and therefore it had come to wrong decisions.

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. Before me, the applicant submitted that he was at liberty to give evidence before the Board; that the Board did not make investigation into the matter and came to conclude that he may live elsewhere; that his enemies are quite powerful and his friend had told him that they are still against him though they did not act against his family and that he believes that this is a trap for him to return to his country.

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 grounds he had raised before me do not assist him. According to the Board’s Decision, the Board had considered the issue of internal relocation and had also discussed this issue with the applicant. Having considered that he was safe living in Dhaka and Chittagong and he would be safe to relocate to those cities if he returns to Bangladesh. [94] The information from his friend is only hearsay information which cannot be verified. It is not a valid ground to challenge the Board’s Decision.

17.The grounds as raised by the applicant in his affirmation do not assist him for his application. Ground (1) fails as he had not raised this issue with the Board for more time and, yet, he was able to answer all the questions put to him by the Board. The fact that he did not have interpretation service is not a valid ground as he is not entitled to such service at all stages of his application[1]. He had already had duty lawyer service at the screening stage. Ground (2) fails as the Board does not have statutory duty to notify him by phone upon request. He was not prejudiced in any event. Ground (3) is only his bare assertion without any evidence in support. Ground (4) is a non-point because there had been screening process for the other risks, with the same factual background and there is simply no prejudice to him. Ground (5) fails because it is unnecessary for the adjudicator to go to his country physically in order to understand his situation in his country. He may rely upon the country of origin information, which he did in this case.

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 to 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

[1] The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 held:

“I8. … …Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.”