Hossain Tofajal and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1381/2019 and HCAL 3824/2019
(Consolidated)

HCAL 2542/2019
(Heard together)

[2024] HKCFI 1101

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

No. 1381 OF 2019 AND No. 3824 of 2019

(Consolidated pursuant to the Order of
Deputy High Court Judge K.W. Lung dated 29 November 2023)

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2542 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 1st and 4th Applicants of HCAL 1381/2019 and HCAL 3824/2019 (consolidated) and the applicant of HCAL 2542/2019 being present and 2nd and 3rd Applicants of HCAL 1381/2019 and HCAL 3824/2019 (consolidated) being absent in open court;

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

Leave for the Applicants’ application in the consolidated action to apply for Judicial Review of the Board’s First Decision, the Board’s Second Decision and the Board’s Decision on the mother’s clam be refused.

Observations for the Applicants:

THE APPLICATION

1.This is an application for leave to apply for judicial review of the Board’s First Decision, the Board’s Second Decision and the Board’s Decision of the mother’s claim as described below.  As the above applications are a case of a family, pursuant to Order 53, rule 12 of the Rules of the High Court (“RHC”), an Order is made for consolidation of the above 3 actions.  However, because of the special features in these actions as set out in paragraph 2, and for better case management, consolidation of the cases should be as follows:

(1)  HCAL 1381 of 2019 shall consolidate with HCAL 3824 of 2019, with

A1: Hossain Tofajal, aged 50, the father;

A2: Hossain Daniel Jordon, aged 14, the 1^st son;

A3: Hossain Collin Williams, aged 12, the 2^nd son;

A4: Hossain Rahul, aged 5, the 3^rd son.

(2)  HCAL 2542 of 2019, Yuliatin, aged 41, the mother’s case be heard together and after the above two actions.

2.I shall explain the special features in these actions.  In HCAL 1381 of 2019, the father lodged the non-refoulement claim together with the 1^st son and the 2^nd son. The 3^rd son’s application was subsequently made.  The father and the mother confirmed that the 3^rd son’s application wholly depended on the father’s claim.^[1] Therefore, these two actions rely on the facts relating to the father.  The mother is in a separate application with her own facts different from those of the father.

3.I shall first assess the case of the father and his three sons in the consolidated actions of HCAL 1381 of 2019 and HCAL 3824 of 2019.  The mother’s claim will be considered at a later stage.

The consolidated actions of HCAL 1381 of 2019 and HCAL 3824 of 2019

4.The applicants jointly apply for leave to apply for judicial review of the Decisions respectively dated 7 May 2019 and 23 September 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s First Decision and the Board’s Second Decision”).  The Board’s First Decision deals with the appeal of the father and his 1^st son and 2^nd son whilst the Board’s Second Decision deals with the appeal of the 3^rd son.

5.The 1^st and 4^th applicants appeared before the Court on 29 November 2023.  Since the joint application is based upon the father’s facts, I shall refer the father as the applicant for the factual background.

The applicants

6.The 1^st applicant is a national of Bangladesh.  He came to Hong Kong on 3 October 2006 from China and was allowed to stay in Hong Kong as a visitor.  He did not depart after his permitted stay and became an illegal immigrant since 18 October 2006.  He was arrested by police and was detained at the Castle Peak Bay Immigration Centre on 9 November 2006.  He and his wife lodged torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  He confirmed that his two sons, viz. the 1^st son and the 2^nd son were to be included in his claim.  His wife lodged a separate claim and she asked for a separate interview.  The 3^rd son was born after their applications.  The father acted as the guardian ad litem for the 3^rd son.

7.First, I shall consider the case of the father, the 1^st son and the 2^nd son.  I shall consider the 3^rd son’s claim separately because his claim bears some distinctive features.

8.According to the applicant, he had inherited pieces of land from his grandfather and father and bought other pieces of land from his brothers.  His enemy is Noor Nabi (“Nabi”), his neighbour, who was the owner of the adjacent land.  At the end of 2005, Nabi and his brothers went to the applicant’s fishery and claimed that the applicant’s land belonged to them.  The applicant refused their proposal, whereupon they attacked him with big knives and sticks.  His enemies had attacked him two times and caused him injuries on his legs, back and head.  His mother was also attacked on the first occasion. In order to avoid his enemy, he had stayed in Chittagong with his friend for 10 to 15 days.  He had gone to India and returned to Dhaka to stay with his friend, who advised him to leave Bangladesh for Hong Kong.  He took his friend’s advice and came to Hong Kong through China.  Since his departure from Bangladesh, Nabi and his brothers had occupied his land.

9.Details of his story are set out in paragraph (1) of the Notice of Decision dated 24 May 2013 (“the Director’s First Decision”), which rejected the applicants’ torture claim.  The applicants jointly appealed to the Board.  The Board dismissed their appeal on 22 October 2013.  See paragraph 5 of the Board’s First Decision.

10.By a written signification dated 30 September 2013, the applicants lodged their non-refoulement claim upon the same facts.  Details of his story are set out in paragraph 8 of the Director’s Notice of Decision dated 25 January 2018 (“the Director’s Second Decision”).

11.As the Director had rejected the applicants’ torture claim, the Director considered the applicants’ claims 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”).

12.By way of the Director’s Second Decision, the Director assessed and dismissed their claims.  The Director found that: (i) the low frequency of past ill-treatment from Nabi and his assoicates was indicative of a low future risk of harm upon his family’s return to Bangladesh [15]-[19]; (ii) state protection was available to them [20]-[22]; and (iii) internal relocations alternatives were available and reasonable, which further lowered or negated the perceived risk [23]-[25].

13.By the Director’s Second Decision, the Director rejected their non-refoulement claim.

The Board’s Decisions

14.The 1^st, 2^nd and 3^rd applicants jointly appealed the Director’s Second Decision to the Board.  On 28 November 2018, the Board conducted an oral hearing for their appeal, during which the 1^st applicant elected to give evidence.

15.Having considered the evidence [84]-[106], the Board made the following findings:

“107. After assessing all the evidence, and for the reasons outlined above, I make the following findings. The Petitioner has never been a member of the BNP in Bangladesh and the Petitioner has never been a member of the AL in Bangladesh. I accept that he is a supporter of the BNP in Hong Kong. However, he does not have a profile as a politically active person in Bangladesh and as such I am satisfied that he has not been subjected to harm in the past because of his involvement in politics and I am satisfied that he will not face a real chance of harm now and in the foreseeable future in Bangladesh because of his political association or political opinion.

108. I accept that the Petitioner may be the owner of land and a fishery in his home village in Bangladesh and that he may be neighbours with a man named Noor Nabi and his brothers. However, I do not accept that the Petitioner has been involved in physical fighting with Noor Nabi and/or others because of a land and fishery ownership dispute. It follows that I do not accept that the Petitioner was assaulted in 2004, or 2005, or on 10 or 11 March 2006, or in May 2006. I therefore do not accept that the Petitioner was injured, medically treated, and/or hospitalized and nor do I accept that his mother attended the police station to report assaults or that they attended the office of the Chairman of the Union Council at the time of the claimed assaults or that they attempted to file a complaint in the court. …

111. After assessing all the evidence, I am not satisfied that the Petitioner is a credible witness. I find that the Petitioner has fabricated his claims of being politically active in Bangladesh; of being involved in a land and fishery dispute with a neighbour; and of having a Hindu girlfriend in Bangladesh.

112. In summary, I am not persuaded that the Petitioner has provided a truthful account of the events that led to his departure from Bangladesh.”

16.By the Board’s First Decision, the Board dismissed the appeal of the father and his 1^st and 2^nd son and affirmed the Director’s Second Decision [127].

17.As to the 3^rd son’s claim, there was an interview between the father and the immigration officer, who had asked the father if the 3^rd son faced any other danger or risk for returning to Bangladesh, the father responded “My risk is his risk.”  The father further confirmed that he had no other information regarding his claims to provide and no other information to supplement the 3^rd son’s claims.  See paragraph 8 of the Board’s Second Decision.

18.The Director had considered Torture risk for the 3^rd son as well as he had not applied for torture claim before.  See paragraph 34 of the Notice of Decision dated 23 November 2018 (“the Director’s Third Decision”).  The Director rejected his claim on Torture risk as there was no evidence that he would be subjected to such risk if he returned to Bangladesh with his father.

19.The Director also rejected his claim on BOR 2 risk, BOR 3 risk and Persecution risk on similar reasons for his father and his other brothers as he relied on the same facts.

20.On behalf of the 3^rd son, the father appealed the Director’s Third Decision to the Board on 6 December 2018.  Having considered that the 3^rd son relied on the father’s facts, which the Board had considered extensively, the Board was satisfied that no procedural unfairness would arise if the appeal was decided without a hearing, it proceeded to assess the 3^rd son’s appeal without an oral hearing [10].

21.Having considered the evidence, the Board held that since the father’s evidence was rejected, there was no factual basis to support the 3^rd son’s claim.  As such, it held that the 3^rd son does not face a real chance of harm in Bangladesh from his father’s neighbour, Noor Nabi, or from any other person, arising from any and all the father’s claim [23].  The Board therefore, by the Board’s Second Decision, dismissed the 3^rd son’s appeal.

Application for leave to apply for judicial review

22.The applicants filed Form 86 for leave to apply for judicial review of the Board’s First Decision and the Board’s Second Decision.  They have raised the grounds below in support of their applications:

(1)  the Board had unlawfully fettered its discretion by refusing their appeal;

(2)  the adjudicator acted in a procedurally unfair manner;

(3)  the Board’s Decision was unreasonable or irrational in public law sense;

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

(5)  life and limb are in jeopardy;

(6)  the Board had relied on the source of news which is not officially recognized, or it is simply hearsay; and

(7)  it is still dangerous for them to return to Bangladesh as their enemies may harm or kill them.

The consolidated action of HCAL 2542 of 2019

23.I shall now consider the mother’s application.

The mother’s background

24.The mother, aged 41, arrived in Hong Kong on the strength of her Indonesian passport on 10 December 2008.  She was allowed to stay for 3 days. She did not depart and overstayed since 14 December 2008.  On 18 June 2009, she surrendered to the Immigration Department and was released on recognizance.  A removal order was issued against her on 18 August 2010.  She lodged her torture claim, which was rejected on 24 May 2013.  By a written signification dated 30 September 2013, she made her non-refoulement claim.  As the Director had rejected her torture claim, the Director only considered her claim of BOR 2 risk, BOR 3 risk and Persecution risk. The basis of her claim is that, upon refouled, she will be harmed or even killed by Haja, who is a Muslim and he hates her because she is a Christian.

25.Briefly stated, Haja was her neighbour in Indonesia.  He looked down upon her because her family was poor and she was a Christian.  On one occasion in 2001 when she was walking along the road together with two friends, she and her friends were grabbed from behind by some gangsters.  The gangsters used handkerchiefs to cover their mouths and they became unconscious.  When she came round, she found herself inside a hut and discovered that she had been raped. She saw Haja and his son Ralex inside the hut.  She and her friends were detained in the hut for three days, during which they were raped from time to time.  Her friends passed away.  She returned home.  She had reported the case to police.  But the police demanded money for the investigation.  She was unable to pay them.  Shortly after the incident, her mother was killed near a well by some gangsters.  Haja had slapped her when he saw her.  With the assistance from a Sister of the Church, she came to Hong Kong in October 2002.  She did not return to Indonesia since then because she wants to avoid her past so that it will not repeat again.  She does not consider police in Indonesia will protect her as she has no money to pay them.  She does not consider internal relocation is an option for her because she does not have relatives in other parts of Indonesia.  Details of her story are set out in paragraph 7 of the Notice of Decision dated 25 February 2018 (“the Director’s decisions”)

26.Like the father’s case, she had made Torture claim and was rejected by the Director, the Director had only considered her claim on BOR 2 risk, BOR 3 risk and Persecution risk.  See paragraph 11, supra.

27.Having considered the evidence, the Director found that there are no substantiated grounds for believing that there will be any real and substantial risk of being harmed or killed if she returns to Indonesia.

28.The Director found that there is no evidence to show that Haja has the intention of harming or killing her [17].  Also, state protection will be available to her if she returns to Indonesia [18]-[20]; and internal relocation is an option open to her [21]-[24].

29.The mother appealed the Director’s decisions to the Board.  On 16 May 2019, the mother attended a hearing before the Board and she had given evidence with the assistance of an interpreter.

30.Having considered the evidence, the Board by Decision dated 19 July 2019 (“the Board’s Decision on the mother’s claim”), dismissed her appeal upon the findings below:

“97. …I have considered the evidence but find that the significant delay in applying for non-refoulement protection is inconsistent with her claimed fear.

101. …I do not accept that the Petitioner was drugged and raped or that two of her friends were raped and died. I also do not accept that the Petitioner’s mother was murdered by Muslims queuing to take water from a well because she was Christian or that Ralex and others threw stones at the Petitioner’s house because they were Christian in Indonesia. …

102. … I consider that the complete lack of documentary evidence in support of the Petitioner’s claims, when seen together with the inconsistencies and the lack of credibility of her claims, reflect adversely on the Petitioner’s credibility and the reliability of her evidence.

104. …I am satisfied from the evidence that the Petitioner’s children and her husband are not part of her claims. It is therefore unnecessary to make findings about them.

105. …I find that the Petitioner does not fear being harmed or killed by Haja, Haji and Haja’s children.

106. …I am also satisfied that she could relocate to a part of Indonesia where Christianity is the majority religion such as Northe Sulawesi and Papus province and the island of Flores which is majority Catholic. I am not satisfied that the Petitioner would be unable to find employment, accommodation and support on her return to Indonesia.

108. In light of the above, I consider that the Petitioner would not be at risk of any harm if she returned to Indonesia.  I find that there is not a real risk the Petitioner would face any harm should she return to Indonesia for the reason she has claimed.”

31.The mother filed Form 86 on 2 September 2019 for leave to apply for judicial review of the Board’s Decision on the Mother’s claim.  In her affidavit in support of her application, she said that the Board disregarded her dangerous situation.

DISCUSSION

32.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 applicants’ 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

33.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, the father asked the Court to take into consideration that his children have been receiving education in Hong Kong.  The mother did not make further submission.

34.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.”

The consolidated actions of HCAL 1381 of 2019 and HCAL 3824 of 2019

35.It is apparent that the applicants were not legally represented.  The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam, Barma and Au JJA, 27 November 2020 held that in such circumstances, it is incumbent upon the Board to have separate consideration of the minor’s claim to see if there are any child-specific issues, which were not brought to the Boar’s attention because of lack of legal representation.

36.The Board did not have separate consideration of any child-specific issues for the 1^st and the 2^nd sons, although the adjudicator had noticed that the immigration had asked the father if the 3^rd son faced any other danger or risk for returning to Bangladesh, the father responded “My risk is his risk.” The father further confirmed to the Board that he had no other information regarding his claims to provide and no other information to supplement the 3^rd son’s claims.  See paragraph 17, supra.

37.The Board rejected the father’s evidence in support of his claim, see paragraph 15, supra.  Since the sons’ claims are premised on the facts of the father, they have no factual basis in support of their respective claims.  On the materials before this Court, there is no evidence to show that there were child-specific issues, which had not been submitted to the Board for its consideration because of lack of legal representation; particularly when the father was asked by the immigration officer if the 3^rd son faced any other danger or risk for returning to Bangladesh, the father said “My risk is his risk.” and the father told the board that he had no further information to supplement the 3^rd son’s claim. 

38.The Court of Appeal in Re Nguyen Van Anh & Nguyen Bao Chi Cherry [2023] HKCA 1356, Hon Chu VP and Cheung JA, 18 December 2023 held:

“16. In the present case, the 2^nd applicant’s claim is premised fundamentally and entirely on the 1^st applicant’s claim. In light of the Board’s rejection of the 1^st applicant’s evidence, the factual foundation of her claim failed. It follows from the rejection of the 1^st applicant’s claim that there is no basis to support the 2^nd applicant’s claim.

17. We also agree with the Judge that on the materials available to the court, they do not disclose any possible concern that there may be non-refoulement grounds that relate specifically and solely to the 2^nd applicant but had not been advanced to the Board or considered by it because of the lack of legal representation on behalf of the 2^nd applicant before the Board.  In the circumstances, although the Board did not appear to have separately considered the 2^nd applicant’s claim, we do not consider, having regard to the facts of this case, there is any basis to judicially review the Board’s decision.”  

39.The grounds set out in paragraph 22, supra, are mostly general assertions or personal opinions without any evidence in support.  Ground (5) and ground (7) are facts, which the Board had rejected.  As such, they are not valid reasons to challenge the Board’s decisions.  I therefore find that the applicants fail to show that there is realistic prospect of success in their proposed judicial review.

The consolidated action of HCAL 2542 of 2019

40.I am satisfied that the Board had examined the mother’s case with rigorous examination and anxious scrutiny.  For the reasons it had given, it rejected the mother’s factual evidence in support of her claim.  In my view, the Board was entitled to form its views and the Court has no reason to interfere with its decisions.

41.The mother has not raised any valid reason to challenge the Board’s Decision on the mother’s claim.  Therefore, she has failed to show that there is any realistic prospect of success in her intended application.

CONCLUSION

42.Accordingly, I refuse to grant leave for the applicants in the consolidated actions to apply for judicial review of the Boards’ First Decision, the Board’s Second Decision and the Board’s Decision on the mother’s claim and I dismiss their applications.

Dated the 13^th day of May 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