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

HCAL 1435/2019

[2024] HKCFI 879

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1435 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 25 March 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, a date was fixed for him to appear before the Court on 27 September 2023.  However, he was absent without prior notice to the Court.  His application is therefore dealt with on paper.

The applicant

3.The applicant, aged 39, is a national of Bangladesh.  He sneaked into Hong Kong from China in December 2007.  On 1 August 2012, he raised his torture claim, which was rejected on 1 November 2012.  A Removal Order was issued against him.  On 1 August 2012, he submitted written signification requesting for non-refoulement protection.  He claimed that, if refouled, he would be subjected to torture if he returned to Bangladesh.

4.In short, the applicant was a member of the Islamic Chhartra Shibir (“ICS”), a rival party with the AL.  Sometime before 2002, he and other ICS members had a fight with the AL supporters during a procession in Paltan, Dhaka.  He was hit with sticks and got injured on his lower back and left leg.  After ICS formed a coalition with the Bangladesh Nationalist Party (“BNP”), he was involved in some illegal work, mainly extortion.  In 2006, he studied at Jamiya Hosseniya Lalkhan Bazzaar Madrsa (“JHLB Madrasa”) in Lalkhan Bazaar, Chittagong district where the Harkatul Mujahideen (“HM”) was.  He was forced to join the HM.  He knew at that time that he was on the police hit list.  On 28 October 2006, there was the Logi Boitha Movement, organized by the AL.  A fight occurred between ICS, AL and BNP as ICS disrupted the rally, which ended with many people dead.  He was injured too; and he knew a police report had been made against him.  One day in mid-2006, whilst he was attending a meeting with other HM members, police came and he escaped.  He then stayed with his paternal uncle in Dhaka and other places with his maternal great-grandmother and friends.  Finally, in 2007, he had to leave Bangladesh for China, from where he sneaked into Hong Kong.  Details of his claim are set out at paragraphs 10-32 of the Notice of Decision dated 14 July 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

5.As he had raised a torture claim and was rejected, 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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim as it was unsubstantiated.  In elaboration, the Director found that: (i) there was no substantial ground for believing that the AL people would seriously harm or kill him if he returned to Bangladesh [53]; (ii) there was no evidence that police would arrest him [52]-[56]; (iii) ; (iv) state protection was available [60] - [63]; and (v) internal relocation was also available and reasonable [64].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 7 September 2018, the Board conducted an oral hearing.

8.Having considered the applicant’s evidence, and for the reasons given, the Board came to the following conclusions:

“45. …The Board found many aspects of the Appellant’s evidence at the hearing confusing, vague, inconsistent with his previous evidence and generally lacking in credibility….

69. … the Board does not accept that he was ever forced to join or as associated with HM or JMB. …The Board further does not accept that the Appellant was in hiding from the authorities in Dhaka or anywhere else or that he left Bangladesh due to fears of being arrested by the police for HM/JMB membership, either real or perceived.”

9.For the above reasons, the Board found that the applicant was unable to establish that he would have any real risk of being harmed or killed if he returned to Bangladesh and the Board dismissed the applicant’s 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.The applicant has raised the following grounds in support of his application:

(1)   the Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)   the adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal: the hearing bundle was given to him a few days before the hearing; the documents are in English and he could not afford an interpreter himself; the Board did not notify him the Board’s Decision even though he had made express request; he was confused at the hearing, but he had answered all the questions honestly; the Board had relied upon the source of news which is not officially recognized or it is simply hearsay, or are already outdated, resulting the Board making speculations that it is safe for him to return to his country of origin, without taking into consideration of his right to life under BOR 2 risk; and the Board had come to is conclusion without going to his country to see the real situation there herself;

(3)   the Board’s decisions to refuse the applicant’s appeal were unreasonable or irrational in the public law sense, or are as result of procedural errors or unfairness; and

(4)   the Board failed to meet the greater care and duty owed to a self-represented claimant.

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 come to the findings of the facts after careful consideration of the evidence and for the reasons it had given in the Board’s Decision.  In my view, the Board was entitled to make such finding of the facts.

16.Considering the applicant’s grounds in support of his application, most of them are his bare assertions or personal opinions or comments without any evidence in support.  As some of the allegations made under (2) may require further consideration, I shall deal with them.  Since the applicant had made no complaint to the Board that he did not have enough time or resources to prepare his hearing and that he was able to answer all the questions put to him by the Board, his complaint is not valid as there is no prejudice shown.  The fact that the Board did not notify him the Board’s Decision by phone is not a valid complaint as the law does not require the Board to do so and there is no prejudice to him.  It is not necessary for the adjudicator to go to his country physically in order to understand his situation as the Board was entitled to make reference to the COI.

17.I find that the applicant has made no valid ground 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 12^th day of April 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