Parbeg Dhin Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 2082/2019 on BabelCite. This High Court CFI judgment was delivered on 19 November 2024.
1. This is an application by Mr Parbeg Dhin Muhammad (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 5 July 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 29 June 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).
Cites 2 cases
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HCAL 2082/2019 [2024] HKCFI 3299 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2082 of 2019
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge Reuden Lai: Leave to apply for Judicial Review be refused. Observations for the Applicant: Introduction 1.This is an application by Mr Parbeg Dhin Muhammad (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 5 July 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 29 June 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”). Background of the Applicant 2.The Applicant is a Bangladeshi. He was born on 4 June 1990 in Comilla, Bangladesh. He received 16 years of education and had one year of work experience in a lift company and an air conditioning company. The Claim 3.The Applicant claimed to get affiliated with Bangladesh Jatiyatabadi Chatra Dal (“JCD”), the student wing of Bangladesh Nationalist Party (“BNP”), when he was studying in the Professor Abdul Majid College. He was elected as the vice president of No. 22 Tonki union council level of JCD in 2007 and helped with JCD’s campaign activities during the 2008 election. He continued to be involved in the JCD activities afterwards. 4.The Applicant claimed that he was attacked or targeted by the Bangladeshi police or members of the rival political party, the Awami League (“AL”), in several incidents in 2013 and 2014. Four of the incidents were described in detail in §§6.15 – 6.33 of the DOI Decision. In the second and fourth incidents, the police and the AL members, respectively, looked for the Applicant in his family home in Comilla. 5.The Applicant was concerned with his safety and fled to India between 12 and 15 April 2015. After a senior JCD affiliate told the Applicant that he should not stay in India, he tried to obtain a visa to Malaysia and Germany, but his applications were refused. 6.The Applicant applied for a visa to Hong Kong in or about May 2015 and he hid in several hostels in Savar, Dhaka while his application was being processed. The Applicant came to Hong Kong illegally in August 2015 via Mainland China after his application for Hong Kong visa was refused. 7.The Applicant claimed that he would be ill-treated or killed by the AL people or the Bangladeshi police if he were returned to Bangladesh. Procedural history 8.The Applicant arrived in Hong Kong on 5 August 2015 illegally. He surrendered to the Immigration Department on 6 August 2015. By written representations of 26 and 29 October 2015, the Applicant lodged the Claim. 9.The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:
10.By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal. 11.On 22 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the interested party. The DOI Decision 12.The Director noted that the low intensity and low frequency of past ill-treatment from the AL people was indicative of a small future risk of harm upon the Applicant’s return. The Applicant did not have any substantial involvement in JCD and/or BNP nor special skill or experience that would significantly help JCD and/or BNP to gain its popularity or to compete with AL. It was unlikely that the local AL would continue to spend its resources and efforts to attack, or even kill, an ordinary member of JCD/BNP like the Applicant after a lapse of years and their acts did not show any real intention to kill the Applicant. 13.The Director also did not accept that the alleged ill-treatment sustained by the Applicant, whether physical or mental, attained a minimum level of severity. 14.The Applicant was issued with a Bangladeshi passport by the Bangladeshi authorities in March 2014 and he had never encountered any problem from the immigration authorities upon his departure or arrival clearance in Bangladesh. There was nothing to suggest that he was a target of adverse interest to the Bangladeshi government or a wanted person of the Bangladeshi government. On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that reasonable state protection would be available to the Applicant, if necessary. 15.Even if the local AL people did have real intention to harm or kill the Applicant, there was no substantial ground to believe that they had the abilities and resources to locate the Applicant nationwide in Bangladesh. The Director found that internal relocation would be viable. If the Applicant moved to Chittagong or Khulna, the AL people would have great difficulty in locating him. After considering his age, education and work experience, the Director found that it would not be unduly harsh to expect him to relocate and lead a normal life. 16.For the reasons set out in the DOI Decision, the Director rejected the Claim. The Board’s Decision 17.After considering the Applicant’s claims including his written evidence, the record of his interview, his notice of appeal and his oral evidence given at the hearing before the Board, the Board concluded that there were serious credibility problems to the Applicant’s evidence such that the Board was unwilling to attach any credence regarding his evidence in these regards. These included the Applicant’s claim that he was a target of AL because he had associated with JCD/BNP or that he was an “active, efficient and intelligent” member of JCD. The Board was also not willing to attach any credence to the Applicant’s evidence on the various incidents alleged by the Applicant or that the Bangladeshi police was looking for him. These were the central parts of his claim for protection. (§§154-166 of the Board’s Decision). 18.The Board nonetheless proceeded to evaluate each of the feared risks as if the events he relied on were true. In relation to torture risk, the Board found that the alleged harm did not satisfy the threshold of severity in pain and suffering for torture and there was no evidence to suggest that the Bangladeshi government was involved or acquiesced in the alleged harm towards him (§§190-197 of the Board’s Decision). 19.In relation to BOR 3 risk, the Board found that the Applicant was not at risk of suffering any torture or cruel, inhuman or degrading treatment or punishment (i.e. CIDTP) for the purposes of establishing BOR 3 risk. It also found that reasonable state protection would be available to him upon his return (§§204-213 of the Board’s Decision). 20.In relation to persecution risk, the Board found that there was no real risk that he faced the type of risk of harm that would constitute persecution. It also found that the Bangladeshi government was not an actor in the alleged harm and reasonable state protection would be available to the Applicant. The Applicant could also avoid the feared harm if he moved to other parts of Bangladesh, such as Dhaka, Chittagong, Khulna or Rajshahi (§§219-243 of the Board’s Decision). 21.As for BOR 2 risk, the Board found that the Bangladeshi government had implemented appropriate measures to protect the lives of its citizens, and the Applicant did not face any real risk to his life upon his return (§§248-255 of the Board’s Decision). 22.The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal. Legal principles applicable to judicial review 23.In a judicial review, the court does not step into the shoes of the decision makers. 24.In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:
25.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success. Discussion 26.In the Form 86, the Applicant put forward the following grounds in support of his intended judicial review:
27.In the Supporting Affirmation, the Applicant reiterated the following complaints:
28.The Applicant failed to attend the court hearing scheduled for 24 October 2024 (“Court Hearing”) despite a notice of hearing having been sent to him on 8 October 2024 at his last known address advised to the court by the Director on 2 September 2024. The Applicant also made no response to a previous letter sent to him by the court on 24 September 2024. In such case, I decided to proceed with this application according to papers placed before the court. 29.The Applicant had failed to specify in the Form 86 or the Supporting Affirmation the fettered discretion, the procedural unfairness and the failed duty of care being matters referred to in the Form 86 as his grounds for this intended judicial review. 30.It is plainly wrong for the Applicant to complain that he had been deprived of the opportunity to put forward his submissions in an oral hearing as the Board’s Decision exhibited to the Supporting Affirmation clearly showed that an oral hearing took place before the Board on 9 November 2018. In §14 of the Board’s Decision, the Board recorded that:
31.The Applicant complained that the Board relied on COI which were unofficial, hearsay or outdated. COI by nature is hearsay evidence. The various COI which had been considered by the Board were listed in Appendixes B to D of the Board’s Decision which included COI previously considered by the Director, additional COI considered by the Board, and further COI referred to by the Applicant. They came from official websites of government authorities, international organizations and news media. They included publications up to September 2018 when the oral hearing before the Board took place on 9 November 2018. They were not outdated. I see no merits in this complaint of the Applicant. 32.The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters. 33.Having rigorously examined the Board’s Decision, the DOI Decision and the Supporting Affirmation with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness. 34.The Board found that there was no real risk that the Applicant would experience risks to life, harm, torture or CIDTP if he returned to Bangladesh. Reasonable state protection would be available and internal relocation viable. It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable. Conclusion 35.In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review. Dated the 19th day of November 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
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