MOHAMMED HANIF v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 866/2019

[2022] HKCFI 298

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 866 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 19 March 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 23 May 2017 (the “Notice”). 

2.  Following his arrest by the police on 10 May 2008 for illegally remaining in Hong Kong, the Applicant lodged a torture claim by written representation.

3.  In due course, his non-refoulement claims were assessed on three applicable grounds then available under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3]. His claims were dismissed by the Director in his decision in a notice of decision dated 19 January 2015.  He lodged a notice of appeal against the notice of decision on 30 January 2015.  He was then invited by the Director to make a claim under BOR 2 Risk[4] which then became available.  He did not respond.  The Director dismissed his claim in a second notice of decision dated 23 May 2017.  His appeal was heard by the Board on 11 April 2016 and 13 December 2018.  By its Decision dated 19 March 2019, the Board dismissed his appeals.  He now seeks leave to apply for judicial review of the Decision.

The Applicant’s case

4.  The following is a summary of the Applicant’s case mainly based on the information in the torture claim form (“TCF”) and supplementary claim form (“SCF”) prepared by him with the assistance of the Duty Lawyer Service, the record of his screening interview before an immigration officer during which he was legally represented and other documents prepared by the Immigration Department as contained in the hearing bundle before the Board.  In gist, his case is that he would be at risk of being harmed or killed by his neighbour, Humayun, because of their land dispute and that he was denied police protection.

5.  The Applicant is Bangladeshi national born in 1979, now aged 43.  He is single.  He received no education.  He worked as a farmer on his father’s land in Pachgan Union.  In about July or August 2006, he noticed the footpath between his father’s plot of land and Humayun’s plot had been dug up.  He went to Humayun’s home to make enquiries.  Humayun said he did not know anything about the matter.

6.  The following day, while the Applicant was trying to restore the dug up footpath, two of Humayun’s friends and five others assaulted him for about 5 minutes.  Before they left, they threatened the Applicant not to restore the footpath, otherwise he would be killed. 

7.  The Applicant made a report to the police station.  Superintendent Rafiq caused the arrest of Humayun and his men and made enquiries, though they were released on the next morning.  Then, some 15 men went to the Applicant’s house while he was not at home.  They threatened his parents that they would kill the Applicant should they find him. 

8.  The Applicant made a report to the police the following day.  He was told by Officer Mamum not to restore the footpath again.

9.  In the following few months, Humayun and his men continued to threaten the Applicant and his family.  On one occasion, they damaged the doors and windows of the house.  The Applicant made several attempts to enlist the help of the police but was turned down.

10.  Out of fear, the Applicant went to Dhaka and stayed for about 2 to 4 months.  Then, at the suggestion of his friend, he flew to China on 29 January 2007.  On 4 February 2007, he came to Hong Kong.

The finding of the Board

11.  The Board had doubts about the Applicant’s case of land dispute with Humayun mainly because he provided piecemeal and inconsistent accounts of his case at different stages of the proceedings.  In his written representation in 2008, his case was that Humayun wanted to occupy his father land by force.  He made no mention that the footpath was a public footpath.  In his TCF and SCF, provided with the assistance of the Duty Lawyer, his case was that Humayun had encroached upon the public footpath and there was no mention about encroachment of his father’s land.

12.  In his interview with an immigration officer, the Applicant suggested that Humayun wanted to occupy both the footpath and his father’s land.

13.  At the 2016 hearing, the Applicant said that Humayun had encroached upon his father’s land by about 4½ feet in addition to the disputed 14-inch wide footpath.  Then, he disclosed there was an on-going legal suit about the ownership of a westerly plot of land which he said was owned by his father.  No one was allowed to farm on the disputed land which has been laid waste and was being used by village boys as a cricket playing field.

14.  The Applicant also gave inconsistent versions in his TCF and SCF as to when his father purchased the land some 30 years ago.

15.  At the 2016 hearing, the Applicant suddenly mentioned there was an outstanding court case against him which caused police officers to look for him at his father’s house.  He said that the Union Chairman Salim Sheikh had agreed to help to settle the matter and for the charge(s) to be dropped against him.  At the 2018 hearing, the Applicant said that the court case had been settled by his father paying Humayun and members of the Union Council a sum of 80,000 Taka.  His father is still living in the village farming his land with no problem.

16.  Despite all the doubts about the credibility of the Applicant’s case, the Board assumed there was this land appropriation by Humayun and that the Applicant had been assaulted or threatened as alleged.  The Board focussed its attention on availability of state protection and internal relocation.

17.  The Applicant suggested that in advising him to stay away from Humayun Officer Mamum was protecting Humayun.  He said that Humayun was powerful and had good relationship with senior members of Bangladesh Nationalist Party (“BNP”) such as Shamsul Islam who was a former member of the parliament and former land minister.  He believed Humayun was a member of Pachgan Union or a Union leader with influence over the authorities.  However, the documents show that the Chairman of Pachgan Union in 2007 to 2008 was Salim Sheikh who was on good terms with the Applicant’s father and who, according to the Applicant, agreed to help to settle the land dispute and to have the charge(s) dropped against the Applicant.  This is inconsistent with the Applicant’s suggestion that his family was helpless and that he would be subjected to the oppressive act of Humayun and his men without help.

18.  On the Applicant’s first complaint to the police station, Superintendent Rafiq caused Humayun and his men to be arrested and made some inquiries.  Though Officer Mamum advised the Applicant to stay away from Humayun and not to do anything on the footpath, it seemed that he managed to stop Humayun from approaching the Applicant.  It appeared that the officer was trying to keep the status quo.  The Board could not come to the conclusion that the police had exhibited favouritism towards Humayun and acted unfairly towards the Applicant.  The Board noted from the COI the corrupt nature of the Bangladesh government, but found no evidence to suggest that the Applicant would not receive fair and reasonable state protection in his village.  The Board concluded that state protection is available.

19.  The Board also found internal relocation is a viable option as the Applicant’s brothers are living in Dhaka with stable employment.  There is no evidence to suggest Humayun had influence beyond his home village.

20.  Even on the basis of the Applicant’s case, the Board was unable to find on reasonably probability that he would be at risk of harm from Humayun and his men in his village.  In the alternative, if he is, the risk could be avoided by internal relocation. For these reasons, his claim under Torture Risk ground and BOR 3 Risk ground failed.

21.  In respect of Persecution Risk, the Board found that the Applicant’s fear of ill-treatment did not fall within the definition of ‘persecution’ under section 37U(1) of the Immigration Ordinance in that it rose out of a private land dispute between individuals and not on account of race, religion, nationality, membership of a particular social group or political opinion which is a basic requirement which a claimant must prove to establish Persecution Risk.  In addition, on the basis of the COI, state protection and internal relocation are available to prevent and avoid the risks.  Hence, his claim based on Persecution Risk ground also failed.

22.  As for his claim under BOR 2 Risk ground, the Board found the Applicant failed to show there is a reasonable probable risk of harm on him in his village or his country, let alone a risk to be killed.

23.  Accordingly, the Board dismissed the Applicant’s appeal.

Grounds for judicial review

24.  The Applicant did not state his grounds of application in the Notice of Application for Leave to Apply for Judicial Review (Form 86).  In his affirmation filed in support of his application, he just exhibited the Notice of Decision dated 19 January 2015 and the Decision of the Board.  Obviously, he disagreed with those decisions, but he did not put forward any specific grounds in support of his intended application for judicial review.

25.  In response to the Court’s invitation by letter dated 10 May 2021, the Applicant filed a submission dated 25 May 2021 advancing the following three grounds:

(1)     the Board’s assessment of risk was unreasonable and speculative;

(2)     the Board failed to properly consider or assign weight to the Country of Origin Information (“COI”) and failed in its duty of joint endeavour; and

(3)     the Board failed to take a relevant factor into account, namely that his risk emanates from his political opinion generally.

26.  In the course of exploring his grounds of application, the Applicant said that Humayun died and it is now safe for him to return to Bangladesh.  He said he wanted to return home.  He was asked to state his wishes and reasons for his belief in his safety under affirmation.  Hereunder is a summary of his evidence.

27.  Humayun died last month.  He had one son and two daughters.    His son is a resident of Germany who returned to Bangladesh to attend Humayun’s funeral.  Humayun’s two daughters are married and moved out of the village.  The Applicant last saw them in 2004.

28.  The Applicant’s parents had a meeting with Humayun’s wife and son who confirmed that they had no part in the conflict between Humayun and the Applicant.  The son will return to Germany while the wife will stay in the village.  In the past, Humayun’s wife had never argued with the Applicant about the land. 

29.  The Applicant said that if he is threatened, he will seek legal redress.  He said he had no problem with the police now that Humayun was gone.   He is contented to have his application for leave dismissed.

The applicable legal principles     

30.  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[5].

Ground (1) – Assessment of risk is unreasonable and speculative

31.  In his ten-page submission, the Applicant quoted some legal principles and authorities.  The Court has no serious dispute with those authorities.  The real issue is the application of the principles stated in those authorities to the facts of the present case.

32.  Though the Board had doubts about the Applicant’s credibility, it proceeded to assess his claims under the four applicable grounds under the USM on the basis of the centrepiece of his case, ie the assault and threats by Humayung and his men.  The Applicant could not have any valid complaint that this approach was unreasonable.  He then alleged that the Board speculated on the Humayung’s intention in inflicting the harm on him and speculated that his fear of the BNP was not justified.  There is a distinction between drawing inference from primary facts proven and speculation based on conjecture or subjective belief.  The Board’s focus was on availability of state protection and internal relocation rather than on Humayung’s intention. Based on the Applicant’s evidence of what Superintendent Rafiq and Officer Mamum did, the Board found the police had not exhibited favouritism towards Humayun or acted unfairly towards the Applicant.  From that finding and the COI, the Board found that state protection and internal relocation available.  These are inferences drawn from primary facts which the Board was satisfied as having been proved.  These inferences are finding of facts which is solely within the province of the Board.  The assessment is neither unreasonable nor speculative.

Ground (2) – Failure to properly consider the COI

33.  The weight to be given to a piece of COI or to parts of it is a finding of fact for the Board, which the Court will not interfere in an application for judicial reviews unless it is vitiated by errors of law, procedural unfairness or irrationality.  The Applicant complained in paragraph 25 of his submission that the Board only referred to one source of COI – namely, the World Population Statistics website about the basic information of the city of Dhaka which had no bearing on whether he was at risk of political violence from BNP.

34.  That website was among the COIs listed by the Director in his Notice of Decision.  The Board has not quoted from that website in its Decision.  But it is reasonable to assume that it had indeed referred to that website when assessing the viability of the internal relocation to Dhaka. In paragraph 39 of its Decision, the Board did refer to the United Kingdom Home Office Report on Country Policy and Information Note – Bangladesh: Background information including actors of protection, and internal relocation – January 2018 and the 2017 United States Department of State Report on Bangladesh 2017 Human Rights Report and cited the websites in which these reports are available.  The purpose was to assess viability of internal relocation.  It has nothing to do with assessing the Applicant’s risk of political violence from BNP.  These reports are from credible and authoritative sources.  It was reasonable to refer to these COIs and to give them such weight as the Board considered fit.  There is no substance in this complaint.  

Ground (3) – Failure to take the Applicant’s political opinion generally into consideration

35.  Under this heading, the Applicant attacked the Board’s Decision for its failure to take into account that his risk of harm emanates from his political opinion generally.  The Court had viewed the papers, including the TCF, the SCF and Notice of Appeal.  While the Applicant had mentioned about Humayung’s association with BNP, he mentioned nothing about his own political opinion not to mention that he was a political rival of BNP and that his rivalry was the cause of ill-treatment.  Humayung’s association with BNP was mentioned in the context of his influence over the police and the authorities and not in the context of any political differences between him and the Applicant.

36.  The entire basis of his submission under this ground as mentioned in paragraphs 29 to 32 of his submission is about the 2001, 2008, 2014 and 2018 elections which never surfaced in the Applicant’s case.  It is obviously a “copy and paste” work by the Applicant’s friend who prepared the submission for him.  There is absolutely no substance in this ground.

Conclusion

37.  Having rigorously examined the Director’s Notice, the Board’s 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.  On the basis of the Applicant’s case, the Board found state protection and internal relocation are available to the Applicant.   Applying the law to the facts, the Board found that there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  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 Court could identify no error of law or procedural unfairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The Applicant’s grounds are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

38.  For the above reasons, leave to apply for judicial review was refused.

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

[1] 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

[2] 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”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 524 at para 14(1)