|
HCAL 442/2019
[2022] HKCFI 1216
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 442 of 2019
| BETWEEN |
|
|
|
DAS SUJON CHANDRA |
Applicant |
|
And
|
|
|
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
|
Putative Respondent |
|
And
|
|
|
Director of Immigration
|
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 30 October 2017[1] (the “Notice”) and the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated10 December 2018 (the “Decision”).
2. The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board[2] and the Applicant has invoked those procedures. The Director’s decision in the Notice was superseded by the Board’s Decision and are no longer susceptible to judicial review: Re Moshsin Ali[3]. For the benefit of the Applicant, the Court treated his complaints against the Director as if they were directed at the Board also.
3. The Applicant is a national of Bangladesh, now aged 29. He allegedly entered Hong Kong illegally from the Mainland on 5 February 2014 and was arrested by the police on the same day. On 8 February 2014, he raised a non-refoulement claim.
4. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[4]; BOR 3 Risk[5]; Persecution Risk[6]; and BOR 2 Risk[7]. By the Notice dated 30 October 2017, the Director rejected his claim under all four applicable grounds.
5. He appealed to the Board against the Director’s decision in the Notice. His appeal was dismissed by the Board’s Decision dated 10 December 2018. On 18 February 2019, he applied for leave to apply for judicial review of that Decision. The Applicant did not request an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.
The Applicant’s case
6. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, his claim is founded on his fear that if refouled he will be harmed or killed by people of Awami League political party (“AL”) because of his membership and involvement in an antagonising political party, namely Bangladesh Nationalist Party (“BNP”); his land dispute with AL people; and that being a Hindi he has difficulties living in Bangladesh in which the majority of the citizens are Muslims.
7. The Applicant was born in District Munshiganj, Bangladesh. He is single and his parents reside in Bangladesh. His religion is Hinduism. He received 12 years of education and had worked as a part-time photographer in a multimedia company for around a year.
8. The Applicant started supporting Chatra Dal which is the student wing of BNP while in college. He later became a member of BNP and his duties included putting up posters and arranging party meetings, protests and rallies. He claimed he was attacked by people of AL on the following six occasions:
(1) On a morning in late 2012, while he was heading to his college to attend a Chatra Dal meeting, he was attacked by 30 to 40 AL people with hockey sticks and wooden sticks and by the police with batons. He ran away but suffered bruises all over his body. He received treatment in a clinic. He did not make any report to the police.
(2) One day in early 2013, while the Applicant and other Chatra Dal supporters were giving out flowers and gifts to new students of his college, around 10 AL people attacked them with bamboo sticks. The attack was broken up by the principal and teachers. He suffered bruises and swellings. He made a report to Tungibari police station, but the police refused to help him for want of evidence. He went hiding in his friend’s home in Gazipur for a month. He returned home when the situation had calmed down.
(3) A week later, the Applicant was chased by three or four attackers. He made good his escape unharmed.
(4) Some time later, the Applicant went with his uncle to the Ariyal Land Office intending to obtain a copy of the title deeds of a piece of family land which had been occupied by Muslim supporters of AL. They were confronted and attacked by around 10 to 12 AL people with sticks when leaving the Land Office. He received 4 stitches as a result of the attack. He made a report to Tungibari Police Station, but the police refused entertaining him saying that the AL people had filed a report against him for initiating the incident that day.
(5) After that, the Applicant and his relatives attended a meeting with AL people who had occupied his family land organised by the Panchayat (village arbitration committee). The purpose of the meeting was to resolve his land dispute with AL people. In the course of the meeting, a confrontation arose. The Applicant and his father managed to escape unharmed.
(6) One day in September 2013, the Applicant was confronted by six to seven AL people. They told him to give up the rights over the family land and to quit BNP. He refused and was attacked by them. The Applicant fell unconscious for two days. He received a deep cut on his chest and he underwent a small operation. He was discharged from hospital after three days.
9. The Applicant was scared of returning to his home after the last attack. He stayed with his friend in Bhaluka. From there, he flew to Kunming and then sneaked into Hong Kong.
10. After moving to Hong Kong, he learnt that his home had been taken over by some AL people and that his parents had to move to another location as a result.
Finding of the Board
11. The centrepiece of the Applicant’s case is his fear of harm and death because he had been targeted by AL people for his membership, involvement in BNP and the land dispute.
12. The Board found numerous inconsistencies and contradictions in the Applicant’s evidence which were sufficiently serious as to undermine the reliability of his account. For example, in his NCF, he alleged that he was targeted in the six incidents because of his involvement in BNP. In his written representation, he also alleged that AL people threatened to kill him if he did not stop his political activities for BNP against AL. But he did not disclose the fact that three of the six incidents were related to land disputes over his family land which he admitted were not politically related. The Board found him incredible and did not accept his account.
13. In addition, the Board found there was no or no reliable evidence showing:
(1) that he held a post within Chatra Dal or BNP and had power or influence within BNP or AL such that he became a personal target of AL people;
(2) that he was injured in any of the six incidents, the assertion of such injuries and suffering being rested solely on his own words;
(3) that he came under any threat in a personal capacity as a target of AL;
(4) that he faces risk in other parts of Bangladesh; and
(5) that the state of Bangladesh was unwilling to help him for a reason protected under the 1951 Convention relating to the status of Refugees.
14. The Board did not accept that the Applicant held any powerful or influential position within Chatra Dal or BNP such that he became a target of the AL. It was not satisfied that he had been attacked by AL people as he alleged and was under any threat in a personal capacity as a target of AL.
15. The Board also found no evidence that the police had close ties with the AL. On the basis of the Country of Origin Information (“COI”), the Board was satisfied that protection of a sufficient standard is available. It was the Applicant who chose not to seek protection after his first two attempts because of his belief that the police were loyal to the AL majority government. The Board found that he was able to stay safely in Gazipur and Dhaka before coming to Mainland China and that his parents had also moved to Battola without any problem. It found internal relocation to other parts of Bangladesh a viable option to avoid the harm and that it was reasonable to expect him to relocate. Given his lack of involvement with BNP or Chatra Dal in the past four and half years after coming to Hong Kong, the Board found he should not be a target of AL upon his return to Bangladesh. Applying the law applicable to the four grounds under the USM, the Board found the Applicant had failed to prove his entitlement to protection under any of the four applicable grounds under the USM.
Grounds for judicial review
16. The Applicant did not state his grounds for judicial review in the Form 86 or in his supporting affirmation. He had been invited by the Court via its letter dated 15 December 2021 to inform the Court of his first language and to file submissions. He did not respond. The letter was sent to him at his address as stated in his supporting affirmation dated 18 February 2019. It has not been returned through the post. There was nothing to suggest the Applicant had moved or has not received the letter.
17. In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that he disagrees with the finding of the Board dismissing his appeal against the decision of the Director in his Notice in refusing his claim for non-refoulement protection. In effect, he is seeking to appeal the Board’s finding of fact that he would not face any real harm or risk if returned to Bangladesh.
Conclusion
18. 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[8].
19. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was 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 found the Applicant not credible and that he has failed to prove the factual basis to support of his claim. It was on that basis that the Board found that he has failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. 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 Decision was utterly without fault. The proposed judicial review has no realistic prospect of success.
20. For the above reasons, leave to apply for judicial review was refused.
Dated 28th day of April 2022.
| |
( Mike MAK )
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
|
|
Sent to the Applicant
on 28/4/2022
DAS SUJON CHANDRA
Applicant’s ref. no:
Nil.
|
|
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 28/4/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9168/17/11/179/B1044
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2137/16
(formerly RBCZ 1423/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
|
Form CALL-1
[1] The Applicant did not identify the decision of the Director complained of other than that he was notified of that decision on 13 November 2017. Having regard to the context of the application, that decision was identified as the decision in the Notice which is the subject matter of the appeal before the Board which made the Decision now complained of.
[2] Section 37ZR of the Immigration Ordinance, Cap. 115
[3] [2018] HKCA 549
[4] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[5] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[6] 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
[7] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[8] [2018] HKCA 524 at [14(1)]
|