Mollah Nurizzaman v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1939/2019

[2024] HKCFI 3317

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1939 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 10 July 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 2 July 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 13 August 2018 (the “Notice”).

2.The Applicant had requested an oral hearing.  A hearing was scheduled and notice of hearing was sent to him by post to his address in Yuen Long discovered from the Immigration Department on 19 July 2024.  It has not been returned through the course of mail.  He never informed the court of any change of address since filing his Form 86.  There is nothing to suggest that he had not received the notice or had moved.  However, he did not appear at the hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

Background

3.The Applicant is a Bangladeshi national.  He sneaked into Hong Kong in November of December 2006.  He was arrested by the police on 29 April 2008 for illegally remaining in Hong Kong and referred to the Immigration Department.  On 9 May 2008, he made a torture claim (the “Torture Claim”) under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  His claim was rejected by the Director on 28 August 2013.

4.On 4 September 2013, he made a non-refoulement claim under the Unified Screening Mechanism (the “USM”).  In due course, his non-refoulement claim was assessed on all three remaining applicable grounds under the USM, namely: BOR 3 Risk^[1]; Persecution Risk^[2]; and BOR 2 Risk^[3]. His application was rejected by the Director’s Notice.  His appeal was dismissed by the Board’s Decision.  He now applies for leave to apply for judicial review of that Decision. 

The Applicant’s case

5.The following account of the Applicant’s case is mainly based on the information in the torture claim form, the supplementary non-refoulement claim form prepared by him with legal assistance and the record of his screening interviews in the presence of his lawyer.  In gist, he claims he will be harmed or killed by members of the Bangladesh Nationalist Party (“BNP”) and the Awami League (“AL”), if he is returned to Bangladesh.

6.The Applicant, now aged 40, was born in Shonadanya KDA, New Market Khulna, Bangladesh.  He is married.  His wife is living in Hong Kong whereas his parents and five siblings are living in Bangladesh.  He had four years’ formal education and one year’s working experience as a factory worker.

7.Since becoming an AL member in 2005, the Applicant kept on being troubled by BNP members from his village or other villages on the street.  They threatened to beat or kill him if he did not leave the AL.  He had the impression that those BNP members were in possession of weapons.  He attempted to report the threats to the police but they refused to register his complaint.  Being fed up with the constant threats, he relocated to Dhaka for a year in July 2005, but he still received constant phone calls from BNP members.  In July 2006, when he returned to his home town to visit his sick mother, he was intercepted by some BNP members who gave him a deadline to join the BNP.

8.He does not believe the Bangladeshi authorities and police could protect him, as they are corrupt.  He does not believe internal relocation feasible because BNP and AL members could locate him throughout the country through their powerful network.

The finding of the Board

9.The Board found that the threats from BNP members, however annoying, were empty threats, as the Applicant was never attacked from 2004 to 2006, except for being slapped on his face once by a BNP member.  The Applicant also presented no evidence that he had ever received any threats from any AL members or had been harmed by them.  The Board therefore considered his fears of being harmed or killed by BNP or AL members had no basis.

10.While credible country of origin information (“COI”) shows there are police failures and corruption in Bangladesh, the same COI also suggests there are objective indications that the Bangladeshi government has taken practical steps to maintain public order and safety in its jurisdiction and to improve effectiveness of the police and to monitor its conduct. Furthermore, as an able-bodied person, the Board found that the Applicant could relocate to a larger city in Bangladesh to avoid the perceived risks from BNP or AL members, which are localised within his home town.  It therefore found adequate state protection would be available to the Applicant on his return to Bangladesh and internal relocation feasible to avoid the risk of harm.

11.In the circumstances, the Board found that there could not possibly be any substantial grounds for finding that the Applicant faced any real risk of ill-treatment if refouled to Bangladesh.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support his claims for protection under any of the three applicable grounds being considered.  Hence, it dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

12.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[4].

Grounds for judicial review

13.The Applicant did not advance any grounds for review in Form 86 and his supporting affirmation.  In the absence of any specific grounds of review, the Court could only focus on errors of law in the Decision, procedural unfairness in the making of the Decision and irrationality in the Decision.

Overall scrutiny

14.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is 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 a very high standard of fairness. The Board assessed the Applicant’s claim on the basis of his case as he asserted. It was on that basis that the Board found the Applicant’s feared ill-treatment is not well-founded.  Then, applying the law applicable to non-refoulement protection to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the remaining three applicable grounds under the USM.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

15.For the above reasons, the Applicant’s application for leave to apply for judicial review is refused. 

Dated the 25^th 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

Form CALL-1