Momin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 2864/2019 [2025] HKCFI 3860 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2864 of 2019
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Levy:
Observations for the Applicant: Introduction 1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 30 September 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 23 September 2019 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 29 March 2019 (“Director’s Decision”) rejecting the applicant's non-refoulement claim. 2.At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 5 June 2025. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address. Background 3.The background as taken from the Director’s Decision and the Board’s Decision can be briefly stated as follows. 4.The applicant is a national of Bangladesh. He surrendered himself to the Immigration Department on 23 August 2018. He claimed to have entered Hong Kong without permission on 21 August 2018 on foot. The applicant lodged his non-refoulement claim on 28 November 2018. 5.The applicant’s claim was considered under all applicable grounds i.e. risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear that if refouled, he would be harmed or killed by the Bangladesh Awami League (”BAL”) and its members, due to his support for the rival Bangladesh Nationalist Party (“BNP”) and due to his involvement in a violent conflict between the BAL and the BNP, in which he was injured and his cousin was killed. 6.According to the applicant, he and his cousin were involved in a violent conflict between the BNP and the BAL members in his village. He estimated that there were about 400 to 500 BNP members and 500 to 600 BAL members involved. In the course of the scuffle between the BNP and BAL members, the applicant’s cousin was killed by the BAL members who stabbed his cousin’s stomach with a wooden stick with a sharp end. The applicant’s cousin died from the injuries. The applicant’s right leg was also struck by the BAL members with a knife. The applicant needed some surgical operations for his injury and took 4 months to recover. 7.The applicant’s father and uncle filed a complaint with the police about the murder of his cousin, and a sub-inspector was assigned to that case. The applicant did not know the result of the compliant. 8.After the violent conflict in which the applicant was injured, the applicant went into hiding. Subsequently, the BAL members vandalized, looted and destroyed his home, and went around hunting down male BNP members. At the same time, a group of the BAL members threatened the applicant’s mother and wife that he would be killed unless they paid 300,000 Bangladeshi taka and withdrew the murder case accusation. 9.The applicant’s father and uncle also filed a complaint with the police about the vandalism and looting of the applicant’s home and the threat made by the BAL members. However, the police failed to take action on that complaint. 10.In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds. Hence, the applicant’s appeal to the Board against the Director’s Decision. 11.The Board decided to dispose of the appeal on paper without a hearing. 12.The Board rejected the applicant claim because it took the view that the applicant’s injury did not attain a minimum level of severity and that state protection was available. The Board also found that internal relocation would be viable. Thus, the Board found that there was no real risk of harm, and dismissed the appeal and confirmed the Director’s Decision. Legal principles applicable to judicial review 13.As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524. The applicant’s grounds 14.In his Form 86 and supporting affirmation, the applicant did not raise grounds. 15.At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application. The applicant repeated the evidence that he had placed before the Board including the vandalism of his house. He stated that the current situation in Bangladesh was bad and he could not return. Discussion No credibility assessment 16.In the present case, when evaluating the various risks of harm, the Board did not conduct any credibility assessment. It is well established that credibility assessment is a core element of the adjudication of non-refoulement claims. Credibility findings often lead to the determination of the material facts considered for the determination of an application, and are therefore the first step in the decision-making process[6]. 17.By having failed to conduct a credibility assessment, the Board has arguably failed to fairly and properly determine the applicant’s material evidence relevant for the consideration of the applicant’s claims. 18.A high standard of fairness obliges the Board to conduct the credibility assessment with a structured approach in relation to detail, specificity, internal consistency and consistency with a basis or foundation in the evidence[7] by looking at the applicant’s case in the round[8]. 19.By having failed to conduct any credibility assessment, the Board’s assessment of the risks arguably, objectively viewed, has no reasonable basis. Hence, the Board’s Decision is arguably irrational and is unreasonable. No oral hearing 20.Whilst the Board was aware of the principles governing oral hearing (Board’s Decision at [17] to [21]), the Board appears to have disregarded the importance of “joint endeavour”. High standards of fairness would have obliged the Board to adopt an active role by drawing attention to the applicant “matters that needed clarification or elaboration so that they can be addressed by” him. The application of “anxious scrutiny” would have required the Board to adopt a fair procedure in reaching a rational decision[9] by giving the applicant in the present case every reasonable opportunity to establish his claim. 21.In reaching its conclusion that the applicant’s injury did not attain a minimum level of severity purely on paper, the Board did not explain why it considered that the applicant’s injury did not attain a minimum level of severity. In the absence of explanation or elaboration by the Board, it seems reasonably arguable that the applicant’s injury, which required more than one surgical operation and took 4 months to recover, was a significant injury. The applicant was not given an opportunity to elaborate on the extent of the injury. It is reasonably arguable that the Board’s Decision is unreasonable and tainted by procedural unfairness. No consideration of mental suffering when assessing BOR 3 risk 22.Despite the Board’s reference to “physical or mental ill-treatment” when concluding at [35] of the Board’s Decision that the applicant’s ill-treatment had not attained a minimum of severity, the Board appears to have only focused on the applicant’s physical injury. Objectively viewed, the Board seems to have not considered the mental suffering of the applicant when the applicant was involved in the scuffle with the BAL, in which his cousin was killed, and the subsequent vandalism, looting and destruction of his home and the intimidation inflicted on his mother and wife. These series of event could cumulatively be CIDTP, or evidence of future BOR 3 risk. Hence, the Board’s assessment of BOR 3 risk is arguably irrational and unreasonable. State protection 23.At [24(c)] of the Board’s Decision, the Board concluded that state protection was available, notwithstanding the inaction by the police. The Board believed that other police stations or government authorities could deal with the complaint by the applicant’s father and uncle. 24.However, on the basis that the Board did not cite any country of origin information (“COI”) as to what alternative avenues of redress that could be available to the applicant. The Board also failed to consider the fact that there was no evidence that any of the AL members were held accountable for murdering his cousin or hunting down BNP members in the village. 25.The evidence the Board cited did not show that there would be effective state protection and in particular that there would be effective avenues of redress. 26.The Board referred to two items of COI regarding efforts to combat corruption. However, such information was not relevant to the issue under consideration. The crucial matter the Board ought to have considered was whether the AL (which at all relevant times was the ruling party) would influence the police or the state such that the police or the state would not provide effective state protection to BNP members such as the applicant. 27.In the circumstances, the Board has arguably failed to demonstrate that it had conducted a proper and independent assessment of COI, thus the Board’s Decision is tainted by procedural unfairness: A, B, C, D and E v Torture Claims Appeal Board [2024] HKCA 471 at [33] – [34]. 28.The Board seems to have also failed to mention or consider any of the Director’s COI that seems potentially relevant to the consideration as to whether the police or the state would be influenced by the AL. Thus, the Board has arguably failed to comply with its duty to consider all materials placed before it. This could render Board’s Decision unreasonable: see Ina Astuti v Torture Claim Appeal Board, [2022] HKCA 448 at [33] and [43] – [44]. 29.For the above reasons, it seems at least reasonably arguable that the Board’s Decision is wrong at law, tainted by procedural unfairness and that it does not meet the required high standards of fairness. Conclusion 30.In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 31.Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s decision, and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party. Order 32.Leave is granted to the applicant to issue a judicial review application against the Board’s Decision. 33.The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party. Dated the 3rd day of September
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 [1] This refers to the risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap.115. [2] This refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”). [3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR. [4] This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. [5] This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293. [6] See UNHCR “Beyond Proof- Credibility Assessment in EU Asylum Systems”, May 2013, Section 1.2. [7] See generally UK Home Office, “Assessing credibility and refugee status in asylum claims lodged on or after 28 June 2022” at pp.44-45; UNHCR, “Beyond Proof: Credibility Assessment in EY Asylum” (May 2013) at p.41. [8] MS v Torture Claims Appeal Board [2021] HKCA 979 at [24]. [9] AM v Director of Immigration [2014] 1 HKC 416 at [33]-[34]. | |||||||||||||||||||||||||||||||||||||
Cases cited in this judgment