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

HCAL 1346/2019

[2023] HKCFI 2909

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1346 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 3 May 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 date was fixed for him. However, the applicant was absent without prior notice to the Court. His application is therefore dealt with on paper.

The applicant

3.  The applicant is a national of Bangladesh. He entered Hong Kong illegally on 2 February 2015 and was arrested by the police on 5 February 2015. On 7 February 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by people from the Awami League (“AL”) because of his membership with Chhatra Shibir (“CS”), a student wing of Bangladesh Jamaat-e-Islami Party (“JI”).

4.  In short, the applicant claimed to have been an ordinary member of CS since 2007. Their party’s conflict with AL started in 2009 when the AL members often disrupted the CS’s gatherings and rallies. In mid to end of 2009, the applicant had been receiving phone calls with demands for him to join the AL. In January 2010, the applicant was attacked by five AL members with bamboo sticks for refusing to quit CS and join the AL. Out of fear, the applicant escaped to other villages before fleeing to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 22 June 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

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

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

(2)  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”);

(3)  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

(4)  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”).

6.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [11]; (ii) state protection would be available to him [12] - [16]; and (iii) internal relocation was a viable option [17] - [19].

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board. On 4 March 2019, the Board conducted an oral hearing for his appeal, during which he gave oral testimonies.

8.  The Board considered the applicant’s claim and his oral evidence at the hearing [12]　-　[46]. Having considered the claim, the Board found that the applicant was not a witness of truth [51]. In particular, the Board noted that the applicant’s knowledge about CS was superficial and unpersuasive [53]; that there was no document to support his claimed membership [54]; that he had little knowledge of CS’s political affiliation [55] - [57]; that he was inconsistent as to the details of the alleged threats from the AL members [58] - [59]; that he also contradicted himself with regard to the injuries sustained [60] - [62]; that he was inconsistent as to whom he stayed with after he left his home village [63]; that he was in fact taken a statement by the police despite claiming that the police refused to register his complaint [64]; and that he provided contradictory account as to whether he encountered problems while he stayed with his friend [65].

9.  In light of these unexplained inconsistencies, the Board refused to accept the applicant’s accounts. Meanwhile, the Board found that state protection and internal relocation were both viable options [72] - [75].

10.  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

11.  The applicant has filed Form 86 dated 20 May 2019 for leave to apply for judicial review of the Board’s Decision.

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

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

(2)  The adjudicator acted in a procedurally unfair manner in dealing with his appeal: the hearing bundle was given to him a few days before the hearing and he did not have interpreter’s service and he was confused although he had answered all questions put to him; the Board’s Decision was not notified to him by phone as he requested; the Board relied on the source of news not officially recognized and outdated COI; there was no screening; the adjudicator had not been to his country to understand his situation.

(3)  The Board’s decisions to refuse his appeal were unreasonable or irrational in the public law sense, or are 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

13.  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).

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

15.  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.”

16.  The grounds in paragraph 12 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].”

17.  The Board, for the reasons given above, did not believe his evidence on the facts of the applicant’s case.

18.  As to the grounds in support of his application, grounds (1), (3) and (4) are his bare assertions or his opinion without any evidence in support. As to ground (2), he did not complain to the Board that he was not given enough time to prepare his case. Also, he was able to answer all the questions. The fact that he did not have the interpretation service is not a valid ground for his application as the Court of Appeal had pointed out that he is not entitled to this service at all times throughout the proceedings. It is unnecessary for the adjudicator to go to his country to understand the situations there as she could rely upon the COI. All these grounds are not valid to challenge the Board’s Decision.

19.  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.

20.  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 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