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

HCAL 1432/2019

[2024] HKCFI 568

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1432 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 11 April 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.As the applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, his application is dealt with on the papers.

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 was arrested by the police for illegally remaining in Hong Kong on 4 March 2013. He raised a torture claim which was rejected on 29 November 2013. On 5 December 2013, he lodged a non-refoulement claim by way of written signification on the basis that, if refouled, he would be harmed or killed by the general secretary of the Awami League (Liton) as he was unable to fulfill Liton’s demand of 20 Lakh Taka (approximately HKD 200,000). In light of his previous torture claim, the applicant’s non-refoulement claim was assessed on all applicable grounds except Torture risk[1].

5.In brevity, the applicant claimed he was brought before Liton in around the end of November 2012. Liton demanded from the applicant the sum of 20 Lakh Taka within 3 months, failing which he shall be killed. The applicant was unaware the reason he was targeted by Liton but nevertheless acquiesced to the demand as he was in fear of harm. The applicant further knew that Liton was an affluent individual in the Awami League, thus had strong influence in the applicant’s home village. However, the applicant was unable to provide 20 Lakh Taka to Liton and decided to flee Bangladesh. He initially stayed in different parts of Dhaka and on 22 February 2013, he left Bangladesh to China via Dhaka airport. He attempted to seek assistance in China but was unsuccessful; and ultimately arrived in Hong Kong leading to his arrest. As to the current situation, the applicant was informed by his father that Liton (and his henchmen) had started harassing his family in late 2017. They would verbally and physically assault his family to demand money and the applicant believes Liton intend to occupy the family’s land and house. Details of the applicant’s claim are set out at [7] of the Notice of Decision dated 13 June 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 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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In essence, the Director found that: (i) the risk of harm upon the applicant’s return to Bangladesh was low, partly due to the fact that he was only threatened by Liton once and was never harmed thereafter [14]; (ii) the fact that the applicant’s family continues to remain at their home village indicate there was unlikely a real and personal risk of harm to the applicant, if refouled [14]; (iii) the dispute with Liton was private in nature without involvement of the state [18]; (iv) state protection was adequate in Bangladesh and readily available to the applicant [20]; (v) internal relocation alternatives were available and reasonable [23]; and (vi) the applicant’s behavior to continuously provide new information cast a reasonable doubt on his credibility, which even if accepted, the Director still considered there was no real or personal risk to the applicant based on all the information provided [38].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 11 February 2019, the Board conducted an oral hearing for his appeal, during which he gave evidence [39].

9.Having considered the evidence, the Board rejected the entirety of the applicant’s claim; ie the monetary demand from Liton, the harm caused to the applicant’s family by Liton and the false criminal cases against the applicant, the Board found all these events had never occurred [56]. It firstly observed that there were significant inconsistencies in relation to risk of harm from Liton regarding the payment of 20 Lakh Taka [41], such as when the applicant had claimed before the Director that he was only threatened by the Liton once, yet at the hearing, he told the Board that he met Liton on the road once and there was a telephone call between them after their initial meeting [42]. As to the alleged claim that Liton caused harm to the applicant’s family, the Board found there was a fundamental different version of events [44]. The applicant had initially told the Director that Liton and his henchmen caused problems to his family members after his arrival in Hong Kong but before the Board, the story changed to his father was harassed before departing from Bangladesh [44]. The applicant further deposed at the hearing that his father was beaten by Liton only on one occasion, which directly contradicted his statement before the Director [45]. Lastly, the Board found the false criminal charges against the applicant in Bangladesh to be unsubstantiated, such as the false murder charge, which was not included at all in his initial documents submitted to the Director. [51] - [53].

10.Having rejected the factual basis of the applicant’s claim due to the aforesaid reasons, the Board dismissed his 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 27 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.In support of his application, the applicant has raised the grounds below.

(1)  He maintains that if he returns to Bangladesh, he will be prosecuted, tortured and/or killed by his political rivals and/or the individual “Liton” and/or his associates, who are involved in various illicit activities; and

(2)  A murder charge, falsely laid, will/has led to conviction in absentia and a reasonable risk of a capital sentence (or life imprisonment), in line with Bangladesh law. He fears the state will not give him sufficient protection. The Board had not considered the international human rights.

(3)  The adjudicator’s assessment of his evidence and credibility contains significant error of law. The adjudicator’s approach is incorrect and unreasonable.

(4)  There is procedural unfairness due to selected use of the country of origin information.

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.

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, for the reasons given in paragraph 9, rejected the applicant’s evidence on the facts of his claim. In particular, the Board rejected his allegations of false murder charge and other charges against him and it came to the conclusion that he was an untruthful witness. [51]-[56] Grounds (3) and (4) are his bare assertions without any evidence in support.

17.There is no valid ground from the applicant to challenge the Board’s Decision.

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 6^th day of March 2024

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