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

HCAL 1509/2019

[2024] HKCFI 1356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1509 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 oral submissions by counsel for the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 24 May 2019 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.  Mr Romain Pierre Levaire, counsel instructed by Messrs. Mohnani & Associates acted for the applicant and he appeared before this Court on 18 March 2024.

3.  This Court granted leave to the applicant to amend Form 86 and directed the applicant to file affidavit evidence in support of the amended Form 86 within 14 days from the date of the order.

4.  Counsel submitted that he relied on the written submissions lodged with the Court. The Court now deals with the submissions below.

The applicant

5.  The applicant, aged 35, is a national of Bangladesh. He entered Hong Kong illegally on 3 June 2014 and was arrested by the police on the same day. The applicant made a non-refoulement claim on 7 June 2014. The claim was made on the basis that, if refouled, he would be harmed or even killed by the members from the Awani League (“AL”) because of his association with Jamaate Islami (“JI”) party and his participation in a protest against AL in 2013.

6.  According to the applicant, he had been a JI member since 2008. In about May 2013, he took part in a protest against AL with other JI members in Dhaka. The police used violence to disperse the crowd. Thousands of people were killed or hurt by the police and members of Chhatra League, the student wing of AL. The applicant suffered serious head injury and became unconscious after he was attacked by an iron rod. He was sent to hospital for treatment and stayed there for two weeks. Subsequently, AL members went to the applicant’s home to look for him and threatened his family members. To avoid being found, he relocated to various places within the country. In April 2014, the applicant left Bangladesh for China, but was soon repatriated. He left for Mainland China again in about May 2014 and eventually sneaked into Hong Kong on 3 June 2014.

7.  The applicant maintained contact with his family after arriving in Hong Kong and learnt that AL members killed his father at his home in or about 2016. The AL members also warned his other family members that there would be more killings if they failed to disclose his whereabouts. The applicant’s sister reported the case to the police, but they refused to register the case because the culprits were AL members.

8.  The applicant was of the view that he could not seek help from the police because AL was the ruling party in Bangladesh and the police was controlled by them. He also considered internal relocation not viable because AL members were all over the country, so that he would be easily located.

9.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 22 March 2018 (“the Director’s Decision”).

The Director’s Decision

10.  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”).

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director was of the view that the action of the police did not target the applicant as an individual but rather to restore order in a chaotic situation during the protest. The Director also considered that the applicant did not face an imminent and substantial risk of harm taking into account the low frequency and severity of past ill-treatment from AL members. Meanwhile, it was also unreasonable that AL members would kill the applicant’s father simply because he had no knowledge of the applicant’s whereabouts [15]-[17].

12.  In any event, (i) state protection will be available to him upon his return [18]-[22]; (ii) internal relocation is viable [23] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [24]-[28], Persecution risk [29]-[34] or Torture risk [35]-[37].

The Board’s Decision

13.  The applicant appealed the Director’s Decision to the Board. On 23 April 2019, the Board conducted an oral hearing.

14.  The Board noted that the applicant claimed to be a JI supporter in the screening interview instead of a JI member as claimed in the non-refoulement claim form. During the hearing, the applicant clarified that he was merely a JI supporter. He also told the Board that he was not sure who attacked him with an iron rod during the protest, as there were many people around at that time [33].

15.  Having considered the applicant’s evidence, the Board was of the view that the applicant would unlikely attract adverse interest from AL given that he was merely a grass-root level JI supporter. In fact, the applicant admitted that he did not even know who attacked him with an iron rod during the protest. In any event, even if the police were the assailants, the Board considered that they were only carrying out their duties for crowd control rather than targeting the applicant specifically. Furthermore, there was no evidence showing that the killing of the applicant’s father was premediated. Based on such findings, the Board found no reasonable ground to believe that the applicant would be tortured or seriously harmed if refouled to Bangladesh [60]-[85].

16.  The Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk [87]-[97], [125], BOR 2 and BOR 3 risk [98]-[109] [126]-[127] or Torture risk [110]-[121], [128]. The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

17.  The applicant has filed Form 86 dated 3 June 2019 for leave to apply for judicial review of the Board’s Decision.

18.  Counsel for the applicant relies on the grounds below in support the applicant’s application:

(1)  Failure to assess the applicant’s credibility

(2)  Irrational deduction from the applicant’s life in hiding

(3)  Failure to give due consideration to Country of Origin Information (“COI”)

(4)  Unreasonable assessment of the risk of Persecution

(5)  Unreasonable findings on state protection

(6)  Unreasonable findings on internal relocation alternative

DISCUSSION

19.  The above grounds will be discussed below. First, I shall state the relevant legal principles for this matter.

20.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

21.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

22.  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.”

Ground (1) Failure to assess the applicant’s credibility

(1)  The applicant complains that the Board had made no finding of the facts; or if it had done so, the Board had not given adequate reasons in support of such findings; and

(2)  the Board did not make investigation into whether the applicant understood the difference between a supporter and a member of the political party before it came to the conclusion that there is inconsistency in the applicant’s evidence.

23.  Since the applicant has made a number of complaints against the Board on the Board’s finding of the facts, it will be of assistance to set out the skeleton of the Board’s Decision in relation to the Board’s assessment of the evidence. What follows are the relevant areas of the Board’s consideration. The references refer to the Board’s Decision.

(1)  The Board’s consideration of the evidence [11] – [15]

(2)  The principles [16]

(3)  The burden of proving the applicant’s case: the standard of proof, well-found fear, general situation of violence, the findings of fact with the past as an indicator of future risk of harm, hearsay evidence [17] – [30]

(4)  Credibility [31] – [34]

(5)  Requisite of showing personal risk [35] – [36]

(6)  Minimum level of severity [37] – [39]

(7)  COI materials [40] – [51]

(8)  Material findings of fact [60] – [86]

(9)  Persecution risk [87] – [97]

(10)  Internal relocation [122] – [124]

24.  From the Board’s Decision, one can see that the Board had painstakingly analyzed the evidence and the adjudicator came to the conclusions below after considering the relevant evidence:

“80. … I do not find that severe pain or suffering within the meaning of ‘torture’ had ever been inflicted on the Appellant.

81. There was no, or no reliable evidence that the alleged perpetrators had
ill-treated the Appellant with an intention listed in the definition of torture in section 37U of the Ordinance.

83. There was no, or no reliable evidence that the Appellant had a well-founded fear of persecution for one or more of the reasons enumerated in Article 1A(2) of the RC.

84. There was no, or no reliable evidence that the state of Bangladesh was unwilling or unable to afford protection to the Appellant. The Appellant left Bangladesh with the strength of his own passport. There were no difficulties encountered by the Appellant when he left Bangladesh.

85. There was no, or no reliable evidence to show that the state of Bangladesh was unwilling to help the Appellant for a RC reason.

86. My findings above will be applied to my considerations in relation to the individual non-refoulement grounds under the USM.”

25.  I do not accept that the Board had failed to pay attention to the different meaning of “a supporter” and “ a member” of the political party. From the Board’s Decision, the Board had clearly made enquiries into the applicant’s status. There is no basis that the Board had to make further investigation.

26.  This Ground fails.

Ground (2) - Irrational deduction from the applicant’s life in hiding

27.  The applicant refers to paragraph 12 and paragraph 16 of the Board’s Decision to lay the ground of complaint.

28.  Paragraph 12 and paragraph 16 of the Board’s Decision do not deal with inference from hiding. Paragraph 70 of the Board’s Decision states:

“I accept that the Appellant went back to his home after his discharge from the hospital, in which he hid in his home for a short period of time. I accept that he then hid in various places in Bangladesh, including Mirpur, Chittagong, Comilla and Jessore. There was nothing eventful after his flee from his home town.”

29.  The Board did not draw any inference from his stay in hospital. It merely stated the fact that if his enemies determined to harm him, he would be most vulnerable when he was in the hospital in Dhaka. But he was not harmed during his stay in hospital. This only shows that his enemies were not targeting him.

30.  Paragraph 11 of the Board’s Decision shows that the Board was fair to the applicant as it accepted his evidence that he was injured in his head by an iron rod. The applicant then agreed that he would not produce any medical report to prove his injury.

31.  The Board did not draw any adverse inference against the applicant as counsel alleges.

32.  This ground fails.

Ground (3) - Failure to give due consideration to Country of Origin Information (“COI”)

33.  The Board had considered the COI, as can be seen from paragraphs 40-51, which relate to state protection as well. The applicant’s complaint is that the Board did not consider the COI in relation to the situation in Bangladesh that members and supporters of the Jamaat-e-Islami, now an outlawed political party, were being persecuted.

34.  I find that the Board had taken this issue on board as can be seen from the Board’s Decision:

“63. There was no reliable evidence that the Appellant joined the JI as a member or supporter in 2008. He has no proof of his membership with JI. …To me, it showed that the Appellant had a limited knowledge of how the party ran, and that he was not as connected with the party as he has claimed.

64. Even if it is accepted that he was a JI supporter at the material time (when the alleged assault and threats took place), the evidence showed that he was merely a grass-root level supporter. He confirmed that both he and his father did not hold positions in JI, He said that he merely participated in meetings and rallies. … The evidence adduced showed that a grass-root level supporter of the JI like the Appellant would have been unlikely to give rise to a well-founded fear of persecution even though I accept that JI is in opposition to the current AL led government.”

35.  This ground fails.

Ground (4) Unreasonable assessment of the risk of Persecution

36.  Counsel’s written submissions said that the adjudicator’s approach is fraught with inconsistencies and he disregarded the welter of documented threats and violent acts against the applicant and the family. Counsel also refers to paragraph 17, in which the adjudicator had expressed his view that it is unreasonable for the applicant’s persecutors to have murdered his father.

37.  The first allegation is only a general comment without any evidence in support. 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].”

38.  Paragraph 17 does not deal with the adjudicator’s personal view on the murder of the applicant’s father. This issue was dealt with by the Board at paragraph 75 of the Board’s Decision:

“In relation to the Murder, even if the AL people did murder the Appellant’s father as claimed, the Appellant agreed at the Hearing that the murder of his father was not a premeditated move of the AL people. [the AL people went to his residence and demanded the applicant’s whereabouts whereupon his father and those people had a fight.] During the fight and the heated argument, his father was killed. I find that there is no reasonable evidence that the AL people had the intention to, if what had happened were true, murder his father because of the Appellant’s allegiance to JI.

76. Considering all evidence submitted by the Appellant, I form the view that nature and low intensity of ill-treatment from the AL people and/or the police on the Appellant in the past are indicative of a small future risk of harm were the Appellant to return to Bangladesh.”

39.  The assessment of the evidence and the finding of the facts are for the adjudicator. In my view, the adjudicator was entitled to form his view as above. There is no good reason for this Court to interfere with such findings.

40.  This ground fails.

Ground (5) Unreasonable findings on state protection

41.  Counsel submitted that the adjudicator had placed undue reliance on the premise of state protection in Bangladesh, a reliance that flies in the face of compelling evidence of systemic corruption and politically motivated interference in law enforcement. He further referred to paragraph 19 of the Board’s Decision, which he submitted is an example of the unfair assessment and reasoning of the adjudicator.

42.  The adjudicator considered COI in paragraphs 40-51, in particular, state protection. He had considered both sides of the issue, police protection for the citizens and police corruption. Counsel has not identified any relevant part(s) of the Board’s Decision that shows over reliance by the adjudicator. Such comments are only his general assertions and the case of Salim Ahmed alias MD Salim, supra applies.

43.  Paragraph 19 of the Board’s Decision refers to the applicant’s burden of proof. The adjudicator cited the judgment of the Court of Appeal in TK v Michael Jenkins & anor [2013] 1 HKC 526. It bemazes me why this authority should have caused extreme concern to counsel. In the Court of Appeal case, the Court of Appeal said that if the applicant was legally represented, the applicant’s burden of proof could be discharged with his lawyer’s assistance. In such circumstances, the advanced standards of fairness does not require the Board to ask the Director to render assistance to the applicant. The applicant was not legally represented before the Board. The Board did not require the applicant to prove state protection. Nor did the Board say that because of the applicant not producing the relevant COI, he failed to support his case that state protection will not be available to him if he returns to Bangladesh. I find that there is nothing in this point.

44.  This ground fails.

Ground (6) Unreasonable findings on internal relocation alternative

45.  Counsel referred to paragraph 23 of the Board’s Decision to say that the Board had relied on Wikipedia rather than on the objective COI available to him in support of his decision.

46.  Paragraph 23 of the Board’s Decision does not deal with internal relocation. The Board did not rely upon Wikipedia

47.  In paragraph 122 of the Board’s Decision, the adjudicator said he bore in mind of the principles in the case of Januzi v SSHD & Ors [2006] UKHL 5, [2006] 2 AC 426. He further said:

“123. It is a well-recognized principle, which was clearly stated by the Court of Appeal in Robinson[1] that the decision-maker need only consider internal relocation if the Appellant has established that he/she qualifies as a refugee pursuant to Article 1A(2) of the RC. In other words, internal relocation only arises if the Appellant has established a real risk of persecution in his home area, which he has not.

124. In the circumstances, it will not be necessary for the Board to consider the issue of internal relocation.”

48.  The Board, for the reasons it had given, found that the applicant failed to establish a real risk of persecution in his home area. The applicant has raised no valid reason to challenge the Board’s finding. There is simply no reason for this Court to interfere with the Board’s finding on the facts of this case as held by the Court of Appeal in Re Kartini case, supra. The Board was right not to consider internal relocation for the applicant.

49.  This ground fails too.

50.  All of the applicant’s grounds fail. The applicant is unable to show that there is any realistic prospect of success in his intended judicial review of the Board’s Decision.

CONCLUSION

51.  For the reasons above, 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