RAHMAN FAIJUR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 922/2019

[2022] HKCFI 1788

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 922 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.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 18 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for him.

3.  However, due to COVID-19 pandemic, the government discouraged social gathering and the court had to suspend hearings for a period of time. The court sent a letter to the applicant and invited him to make written submissions in order to dispense with hearing in court. The letter further said that if he takes the view that it is not possible to make written submissions in place of oral hearing, he should so inform the court, stating his reasons why this is the case and if he does not respond to the letter within 7 days, the court will proceed to consider his application on paper. The written decision will be sent to the applicant in due course.

4.  The applicant did not respond to the court’s letter.

5.  Under Order 53 rule 3(3) of the RHC, it provides:

“The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application….”

Under Order 1A rule 1(b) of the RHC, the underlying objectives of the rules are to ensure that a case is dealt with as expeditiously as is reasonably practicable. Under Order 1B rule 1(l), the court has the power to take steps to make any order for the purpose of managing the case and furthering the underlying objectives set out in Order 1A. I consider that the court has the power to dispense with open hearing of the applicant’s application without doing injustice to his application. I therefore proceed to consider his application on paper.

6.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

7.  The applicant is a national of Bangladesh. He entered Hong Kong illegally on 7 April 2015[1] and was arrested on the same date. On 11 April 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by (1) Abdul Haque (“AH”); (2) Sur Rahman (“SR”); and (3) the Bangladesh police.

8.  According to the applicant, he became a supporter of Bangladesh Nationalist Party (“BNP”) in 2003. He was later selected to be the president of BNP’s young wing. In the 2010 election, one of the candidates from Awami League (“AL”) was elected to be the union chairman and AH lost the election. AH accused the applicant of diverting his votes to the BNP candidates and demanded him to join the AL. Met with the applicant’s refusal, AH and his followers started to pose death threats on him. In December 2011, the applicant started to have land dispute with his neighbor SR who, in revenge, vandalized the applicant’s house. Later in September 2012, he and his family were attacked by the AL members with swords and wooden sticks. The applicant received medical treatments. Reporting to the police was of no avail. Instead, the police intended to arrest him for a false accusation that he had assaulted SR and two others strangers. Out of fear, he fled to other cities, but eventually to Hong Kong, for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 21 December 2017 by the Director (the “Director’s Decision”) and paragraphs 7 to 41 of the Board’s Decision described below.

The Director’s Decision

9.  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”).

10.  By way of the Director’s Decision, the Director dismissed his claim on the basis that he would not face real risk of harm upon refoulement. In elaboration, the Director found that (i) the alleged enemies had no intention to kill him and, alternatively, they were not powerful enough to locate him everywhere. Meanwhile, there was no evidence that he would not get a fair trial if arrested [17]; (ii) state protection would be available to him [18]-[20]; and (iii) internal relocation was a viable alternative [21]-[23].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. On 27 November 2018, the Board conducted an oral hearing for his appeal.

12.  The Board enquired the material aspects of the applicant’s claim [44]-[84]. Having considered all the evidence, the Board found that he was not a witness of truth [87]. The Board noticed that the applicant knew little details about BNP and his rise to the position of president seemed to contradict the standard procedure [88]-[89]. The applicant’s evidence was also inherently inconsistent [89]-[90]. Further, his evidence on not having the membership card was found to be implausible [91]. Thus, the Board refused to accept that he had disputes with AL members due to his political involvement [92]. Insofar as the arson incident happened in 2011 was concerned, the Board found that the applicant was inconsistent as to whether he was present at the time of the incident [94] and the newspaper submitted by the applicant in fact contradicted his assertion [95]-[98]. In light of these inconsistencies, the Board also found that there was no land dispute [99]-[100]. Moreover, the Board rejected his assertion that he was assaulted and/or false accused [101]-[106].

13.  For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

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

14.  The applicant has filed Form 86 dated 4 April 2019 for leave to apply for judicial review of the Board’s Decision.

15.  In his affirmation in support of his application, the applicant submitted the grounds below.

(1)  The hearing bundle was given him late and he was given the chance to make reply to submissions made by the representatives of the Director.

(2)  The Board had relied upon the source of news which is not officially recognized or it is simply hearsay. The cases relied upon are outdated.

(3)  Because of the above, the Board made groundless speculations that it is safe for him to return to his country.

DISCUSSION

16.  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).

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

18.  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.”

19.  Those grounds above are not valid reasons to challenge the Board’s Decision.

20.  There is no record that the applicant had complained to the Board for the late delivery of the hearing bundle. The Director was not represented. Ground (1) fails. Grounds (2) and (3) are his bare allegations without any evidence to support.

21.  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.

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

CONCLUSION

23.  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