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

HCAL 1427/2019

[2024] HKCFI 816

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1427 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, aged 40, applies for leave to apply for judicial review of the Decision dated 3 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.As the applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a hearing was fixed for him to appear on 30 August 2023. However, he was absent without prior notice to the Court. His application is therefore dealt with on the papers.

The applicant

3.The applicant is a national of Bangladesh. He entered Hong Kong illegally via Mainland China on 1 October 2014 and surrendered to the Immigration Department on 5 November 2014. He made a claim for non-refoulement protection on 5 March 2015 on the basis that he would be harmed or killed by his relatives who were affiliated with the Awami League (“AL”) due to a land dispute.

4.In brevity, the applicant’s inherited land was adjacent to his relatives’ land, all of which were bequeathed by the grandfather. According to the applicant, his relatives were supporters of the AL and when the party was in power in 2009, they wanted to occupy the entire plot of land. Thus in 2013, they began to encroach on the applicant’s land and even asked his parents to leave the house. They disregarded the relatives’ request and continued to live in the house until 2014. However, the dispute worsened and his mother eventually filed a civil case against the relatives in a Bangladeshi court. The court ordered the police to intervene but they were apparently bribed by the relatives. On 20 May 2014, the relatives, together with police officers, came to his family house (he was not home at that time) and demanded his mother to withdraw the court case, failing which they will kill the applicant. His mother insisted she would not withdraw the case and the relatives left the house. Fearing for his safety, his mother asked him to leave their home village. He therefore relocated to Dhaka. One night in September 2014, someone attempted to break into his lodging and he had to flee again. In light of the danger in Bangladesh, he decided to leave the country. Details of the applicant’s claim are set out at [6] of the Notice of Decision dated 17 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. In elaboration, the Director found that: (i) there were no substantial grounds to believe there is any real and substantial risk if the applicant is refouled as the behaviour of the relatives showed no real intention to materialise their death threats against him [12]; (ii) there was also no evidence to suggest the relatives were acting in the capacity of the AL and in any event, the land dispute was private in nature [13]; (iii) state protection was available which lowered or negated the level of risk [14] – [16]; and (iv) internal relocation was available and reasonable [17].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 27 February 2019, the Board conducted an oral hearing for his appeal, during which he gave evidence.

8.In essence, the Board did not find the applicant to be a credible witness and several reasons were given [61]. Firstly, there was a clear contradiction regarding the civil case by his mother as the purported supporting documents showed legal proceedings did not commence until June 2015, yet his testimony throughout the hearing and before the Director clearly indicated the proceedings began in the year 2014 [62]. Secondly, he also asserted at the hearing that his relatives had attempted to kill him many times, however, this new information was not provided previously to the Director, and his explanation for his omission was not accepted [63]. Lastly, the evidence relating to the land dispute made little sense, as the Board found it was implausible that his relatives would rather threaten him instead of occupying the land directly, simply due to the alleged ongoing legal proceedings. It further found his attempt to justify such inconsistency to be unconvincing [64]. In conclusion, the Board accepted the applicant’s mother was involved in legal proceedings due to a land dispute with his relatives, however, it rejected the applicant’s claim that he was threatened, attacked or harmed by his relatives or anyone acting on their behalf [65] – [68].

9.Having rejected the factual centerpiece 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

10.The applicant has filed Form 86 dated 27 May 2019 for leave to apply for judicial review of the Board’s Decision.

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

(1)  He maintains that if he returns to Bangladesh and is found by the ruling party, he will be killed.

(2)  The hearing bundle was given to him without interpretation and he could not understand it. Also, his interpreter was not good as he all he had said.

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.The Board had, for the reasons given in paragraph 8, rejected the applicant’s evidence on the facts of his claim.

16.His grounds in paragraph 11 do not assist his application. They are largely his personal opinions without any evidence in support. That he did not understand the hearing bundle, by itself, is not a valid reason for the Court of Appeal had held that he is not entitled to interpretation service all the time throughout the proceedings[1] and this issue was not brought to the Board’s attention.

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 25^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