KAMOL HOSSAIN MOHAMMAD v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1015/2019

[2023] HKCFI 2957

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1015 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 Applicant being absent 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 28 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for him to appear before the Court on 15 February 2023. However, the applicant was absent without prior notice to the Court. His application will be dealt with on paper.

The applicant

3.  The applicant is a national of Bangladesh. He entered Hong Kong as a visitor on 18 January 2016 and was permitted to stay until 1 February 2016. On 2 February 2016, he surrendered to the Immigration Department for overstaying. On 23 January 2016, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by the members of Awami League (“AL”).

4.  According to the applicant, he ran an electronic shop from 2002 to 2015. He belonged to the Bangladesh Nationalist Party (“BNP”) and participated in the gatherings and rallies. As the opposite parties, the BNP and the AL often involved in conflicts. In 2008, the AL came into power. Their members had visited the applicant’s shop to extort money. Nevertheless, they did not hurt the applicant and his family.

5.  In 2014, the AL again won the election. Its members became more aggressive and would attack members of the opposite parties. From mid-July 2015 to August 2015, the applicant encountered three accidents with the AL members who attacked the applicant’s brother and his staff in one incident, and threatened to kill the applicant if he refused to join the AL in another. The applicant was able to escape in a third incident. However, in September 2015, the AL members assaulted the applicant and his wife at his house. They asked the applicant to leave the local area or he would be killed. In the end of September 2015, the applicant was assaulted again at home.

6.  In the beginning of October 2015, after the applicant recovered from the injuries, he escaped to stay with his sister in Narshingdi but one day he saw the AL members approaching and looking for him. He then escaped to South Shilmandi where he was followed and attacked again. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 11 of the Notice of Decision dated 11 July 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

7.  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”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [16]-[21]; (ii) state protection would be available to him [22]-[25]; and (iii) internal relocation was a viable option [26].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 24 January 2019, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter in the Bengali and English languages [8].

10.  The Board recapped the applicant’s claim [9]-[17]. It also clarified certain material aspects with the applicant [22]-[51]. For example, the Board inquired of his business [27]-[28]; his political affiliation with the BNP and the past commitment and involvements [29]-[33]; his claim of being adversely targeted by the AL [34]; the details of the attack incidents [35]-[41]; [44]-[47]; the injuries sustained during the attacks [42]-[43]; and the details of his alleged arrest warrants [48]-[49].

11.  Having considered the evidence and weighing them against each other, the Board concluded that the applicant’s claim lacked credibility. It refused to accept that the applicant was once a committed member of the BNP or that he was perceived to be. It rejected the assertions that the applicant or his family was singled out adversely by the AL members or that he was attacked or his shop was vandalized by them. It was also not satisfied that there was outstanding cases or charges against the applicant. As a result, the Board rejected the applicant’s claim on the basis of lack of credibility [52].

12.  The applicant’s appeal was therefore dismissed.

Application for leave to apply for judicial review of the Board’s Decision

13.  The applicant has filed Form 86 dated 15 April 2019 for leave to apply for judicial review of the Board’s Decision.

14.  The applicant has raised the grounds below in support of his application.

(1)  The Board had unlawfully fettered its discretion by refusing his appeal on the grounds that it did not satisfy the requirement.

(2)  The adjudicator acted in a procedurally unfair manner in dealing with his appeal.

(3)  The Board’s Decision was unreasonable or irrational in the public law sense, or is a result of procedural errors or unfairness.

(4)  The Board failed to meet the greater care and duty owed to a self-represented claimant.

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.

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.  Those grounds in paragraph 14, supra are general assertions or propositions of the law. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

19.  The applicant has not been able to raise any valid reason to challenge the Board’s Decision.

20.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

22.  I refuse to grant leave for 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