MD FATTAH AHMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 69/2022

[2023] HKCFI 3268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 69 of 2022

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 present in open court;

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 23 November 2021 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, he appeared before the Court on 30 October 2023.

The applicant

3.  The applicant, aged 38, is a national of Bangladesh.  He sneaked into Hong Kong from China on 5 March 2020. On 1 May 2020, he raised his non-refoulement claim. A Removal Order was issued against him. He claimed that, if refouled, he would be harmed or killed by Mr. Tahajuddin because of a land dispute.

4.  In short, the applicant inherited a piece of land from his father. His neighbour Mr. Tahajuddin asked him to transfer his land to him. The applicant refused. Mr. Tahajuddin threatened that he would ruin his life. In April, 2019, Mr. Tahajuddin brought 4 people to his home. They were carrying choppers with them. Upon the applicant’s refusal to transfer the land to Mr. Tahajuddin, they assaulted him with bare hands. The applicant suffered bruises on his back, cheek, right eye and nose. He went to the local pharmacy to buy painkillers and ointment to relieve his pain. He had gone to the police station to report the matter. But the police did not take his complaint. He turned to the ward member who was the leader of the area. The ward member advised him to accept Mr. Tahajuddin’s demand.

5.  The second attack took place 15 to 20 days after the first attack. There were 3 males who had come to his home, including Mr. Tahajuddin, who threatened the applicant that if he refused to transfer his land again, he would kill him next time.  He complained to the police again. The police did not take his complaint, telling him to bring along evidence next time.

6.  The third attack happened soon after the second attack when he was on his way back home after shopping.  He was stopped by Mr. Tahajuddin together with 3 other males. They tied him up to a big tree trunk and beat him for 10 to 15 minutes. When Mr. Tahajuddin was about to kill him with his chopper, he screamed and alerted 2 passers-by, who advised Mr. Tahajuddin not to kill him as they would try to persuade him to accept Mr. Tahajuddin’s demand. Mr. Tahajuddin agreed and he left with his subordinates. The passers-by freed him and told him to run away. He went to live in Dhaka at his friend’s premises for about 2 months. He learned that Mr. Tahajuddin had learned that he was in Dhaka and he feared that he might come to harm him. Through an agent, he managed to leave his country for China.

7.  In his view, he does not think the state can protect him. Nor does he consider internal relocation is feasible as he has no one to support him and he is afraid that Mr. Tahajuddin would be able to locate him if he returns to Bangladesh.  Details of his claim are set out in paragraph 6 of the Director’s Decision.

The Director’s Decision

8.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  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”);

c.  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

d.  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”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim as it was unsubstantiated.  The Director found that: (i) the low intensity and frequency of past ill-treatment is indicative of a small future risk of harm upon his return to Bangladesh [11]; (ii) reasonable state protection is available to him according to the Country of Origin Information (“COI”) [12]-[16]; and (iii) internal relocation is a viable option for him [17]-[19].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board.  The Board had taken into consideration the various factors as set out by the Court of Appeal in ST v Betty Kwan, the Secretary for Security and the Director of Immigration [2014] 4 HKLRD 277 Hon Cheung CJHC, Lam VP & Poon (as they then were), 26 June 2014. This, coupled with the fact that the Board considered that it was able to rely upon the facts as the applicant stated before the immigration officer and that it had no further question for him, it decided to assess the appeal on the papers only, without a hearing.

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

(1)  There will be no risk if the applicant transfers his land to somebody else as his right to own property is not universally protected by international human rights law. Also, it will be contrary to reason that his enemy would not have forced him to transfer his land to him when he was child [42]-[45].

(2)  The Board does not believe that his neighbour has a genuine interest in pursuing him for this land [50].

(3)  The applicant has no risk; or even if he does have the risk, it is only a localized risk [46]-55].

(4)  Internal relocation is reasonably viable for the applicant [67]-[75]

12.  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 returns 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

13.  The applicant has filed Form 86 dated 18 January 2022 for leave to apply for judicial review of the Board’s Decision.

14.  In support of his application, the applicant said that he does not agree with the TCAB adjudicator. He has not raised any specific ground.

DISCUSSION

15.  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).

16.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said his problem is still there and he does not want to go back to his country and he wants to go to the Court of Final Appeal.

17.  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.”

18.  The Board had come to the findings of the facts after careful consideration of the evidence. Based upon the applicant’s evidence, the Board was entitled to form its views.  I find that the applicant has made no valid ground to challenge the Board’s Decision.

19.  However, I have reservations on the Board’s analysis on the avoidance of risk if the applicant simply transfers the land to his neighbour or to somebody else, relying upon the authority of Canaj v Immigration Appeal Tribunal; Vallaj v Special Adjudicator [2002] EWCA Civ 782. The Board took the view that “where the behaviour to be modified is not the expression of fundamental rights or of a characteristic protected by international law, an individual can reasonably be expected to alter his behaviour to avoid persecution if this would be effective. It therefore came to the following conclusion:

“45. On that basis, and for the reasons further set out below, I conclude that the appellant can avoid the central cause of his dispute with his neighbour by transferring the land to his neighbour or to somebody else. Since the ownership of land is not a protected characteristic and this is not a case where the appellant has ever relied upon the land for his livelihood, it is legitimate and reasonable to expect the appellant to modify his conduct, rather than relying upon international protection to protect a financial asset.”

20.  In Canaj’s case, the Court of Appeal held at paragraph 19:

“…Sometimes, however, as here, it is sufficient to show that the asylum seeker himself can and should change his own ways so as to avoid future persecution. By the same token that it is reasonable to require someone to abstain from political action to avoid persecution – see Nolan J's judgment in R v IAT ex parte Jonah [1985] ImmAR 7, 12 so it seems to me perfectly reasonable to require Mr. Vallaj to take KFOR's advice and cease living in an isolated tent so as to be able to continue caring for his sheep.”

21.  The Board further said:

“43. …although this decision pre-dates the judgment of the Supreme Court in HJ(Iran), this aspect of its decision has not been subsequent undermined, since it relates to a characteristic not protected by international law.”

22.  It seems that the Board has not noticed that the Supreme Court in HJ (Iran) case had decided that the court did not find it acceptable that the applicant should not have international law protection if he takes some precautions to obviate the likelihood of suffering any actual harm. The Supreme Court in Appellant v Secretariat State of The Home Department SM (Section 8: Judge’s process) Iran [2005] UKAIT 00116 Mr. CMG Ockelton, Depurty President, Miss E Arfon-Jones, Deputy President, Mr. A Jordan, Senior Immigration Judge, 5 July 2005 held:

“64. Suppose the Secretary of State or the tribunal were satisfied that, if the applicant took some such precautions, he would be unlikely to suffer any actual harm. Would the applicant then have no well-founded fear of persecution by reason of being gay and so be unable to claim asylum under the Convention?

65. Surely not. As already explained in para 53 above, so far as the social group of gay people is concerned, the underlying rationale of the Convention is that they should be able to live freely and openly as gay men and lesbian women, without fearing that they may suffer harm of the requisite intensity or duration because they are gay or lesbian. Their home state should protect them and so enable them to live in that way. If it does not and they will be threatened with serious harm if they live openly, then most people threatened with persecution will be forced to take what steps they can to avoid it. But the applicant’s country of nationality does not meet the standard of protection from prosecution which the Convention envisages simply because conditions in the country are such that he would be able to take, and would in fact take , steps to avoid persecution by concealing the fact that he is gay. On the contrary, the fact that he would feel obliged to take the steps to avoid persecution is, prima facie, an indication that there is indeed a threat of persecution to gay people who live openly. His country of nationality is therefore not affording him the necessary level of protection. So the receiving country should.”

23.  It will be helpful to seek assistance from the authority on the definition of “persecution”. The House of Lords in Re Islam [1999] UKHL 20, [1999] 2 All ER 545, 25 March 1999 held, per Lord Hoffmann:

“…Persecution = Serious Harm + The Failure of State Protection.” [653]

24.  In this case, the Board accepted that there might be local risk that the applicant was threatened with serious harm or even death by his neighbour. The Board also accepted that in the very local area he may not be able to obtain reasonable state protection from Mr. Tahajuddin. See paragraph 53 of the Board’s Decision. It is difficult to require the applicant to transfer his land to his neighbour against his wish in order to avoid the risks where the state cannot protect him. This is a similar situation where the Supreme Court in Iran’s case said: “His country of nationality is therefore not affording him the necessary level of protection. So the receiving country should.” Although persecution is not in play in this application, the same consideration will have to apply to BOR 2 risk and BOR 3 risk.

25.  However, I agree with the Board that the risks are localized and the applicant may avoid them by internal relocation.

26.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

21.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

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