AL AMIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

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

Following:

1.  The Form 86 is amended on the Court’s own motion; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 8 April 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 18 March 2021 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 23 September 2020 (the “Notice”) refusing his application for non-refoulement protection.

The Applicant’s claim

2.  The Applicant is Bangladeshi national, now aged 29.  His personal background, the factual background leading to the present application, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, he claims, if returned to Bangladesh, he will be harmed or killed by members of the Awami League political party (the “AL”) for refusing to join the AL and for his support for the Bangladesh National Party (the “BNP”).

3.  The Applicant’s case is that he joined the youth wing of Jobo Dal of the BNP on 17 August 2017 and took part in many of its activities such as meetings, rallies and protests.  He had been invited by the leader of the local AL party to join the AL many times.  He was even threatened with death for not joining.  But he refused.  Then, one day in August 2019, while he and his friends were discussing party issues outside the clubhouse, four to five AL people armed with sticks and knives attacked them.  He suffered some minor injuries and managed to run away.  His friends were severely beaten.  The next day, he left his home to live with his friend in Barishal for a month.  Then he moved to live with his cousin in Dhaka.  He felt confused and sought advice from his friend who suggested him to go to Hong Kong to seek protection. Through his friend’s arrangement, he left Bangladesh for Guanzhou on 15 March 2020.  From there he sneaked into Hong Kong. 

The Board’s finding

4.  The Board seemingly accepted the Applicant’s factual case as he asserted and assessed his claim on the basis of the facts as he asserted, except for his surmises and speculations.  He was assaulted by the AL people once.  He suffered some physical injuries, but his physical and mental conditions were not adversely impacted by the alleged assault.  The Board found the injuries suffered by him did not attain the minimum level of severity as to amount to torture, cruel, inhuman, degrading treatment or punishment or constitute ‘torture’ within the meaning of section 37U(1) of the Immigration Ordinance.  It found no evidence that the threats and ill-treatment were inflicted by or with the consent or acquiescence of a government official or other people acting in an official capacity or that the Bangladeshi government was involved.  It also found the injuries he suffered were not on account of race, religion, nationality or membership of a particular social group or political opinion as provided by the 1951 Convention Relating to the Status of Refugees.  There was no evidence that the Applicant’s absolute and non-derogable right to life under the Hong Kong Bill of Rights will be at risk of arbitrary deprivation, if returned to Bangladesh.

5.  The Board rejected his claim that internal relocation is not viable because the AL network was all over Bangladesh.  On the basis of independent and credible country of origin information (“COI”), it found being an able-bodied adult, it would not be unduly harsh for him to relocate to other places in Bangladesh to sustain his living there and to avoid possible harm or harassments from the AL people in his locality.

6.  Applying the law applicable to non-refoulement protection to the case as he asserted and the Board’s secondary finding based on his case, it found the Applicant had failed to establish sufficient factual basis to support his claim for protection under any of the applicable grounds under the United Screening Mechanism (the “USM”).  Hence, it dismissed his appeal.

The legal principles applicable to judicial review

7.  The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[2].

Grounds for judicial review

8.  The Applicant did not advance any grounds for judicial review in his Form 86.  In his supporting affirmation, he made the following complaints (some are direct quotes from the Applicant’s grounds):

(1)   the Board is required to consider afresh the original decision and arrive at its own determination;

(2)   the Board’s decision was unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness;

(3)   the Board unlawfully fattered (sic) his discretion by refusing the claim on the grounds that they did not satisfy with the requirements;

(4)   the Board failed to meet the greater care and duty owned (sic) to a self-represented claimant;

(5)   the Board acted in a procedurally unfair manner in dealing with the Applicant’s claim;

(6)   it must be kept in mind that the life and limb are in jeopardy and the Applicant’s fundamental human rights not to be subjected to torture in involved;

(7)   in dismissing the Applicant’s appeal/petition, there is no indication that the Board interacted with the facts of the Applicant’s claim, conducted any analysis of the supporting documents or turned its mind to the ground under consideration being the risk of violation of the Applicant’s right to life under BOR 2;

(8)   the Applicant will face hardship if he returned to his home country and the Board has significantly relied on the source of news which is not officially recognized or is simply hearsay;

(9)   the appeal is a de novo hearing, whereby the Board is not confined to any grounds of appeal put forward, but considers all the facts of the claim afresh to come to its own findings;

(10)   the Board relied on some cases which are outdated; and

(11)   despite of the Applicant’s problems in his home country are very severe and he had already submitted all the documents, the Board may not be greater (sic) caring and made the Applicant disappointed.

9.  These grounds are just general accusations revolving around the Applicant’s disagreement with the Board’s finding of fact, procedural unfairness and irrationality.  They are all lacking in particulars.  Some grounds are not entirely comprehensible even allowing for typographical errors. 

10.  Grounds (1), (6) and (9) are general legal principles.  There are no specific allegations as to errors of law, procedural unfairness or irrationality in the Board’s Decision.  There is also nothing to suggest that the Board has departed from those principles.

11.  Grounds (2) and (5) are allegations of errors of law, procedural unfairness or irrationality.  The grounds are lacking in particulars.  At the hearing, after the legal principles applicable to judicial review had been explained to him, the Applicant confirmed that he had no complaint about errors of law in the Decision, procedural unfairness or irrationality in the Decision and would leave it to the Court to scrutinize the Decision for those vitiating elements.  He accepted that the Decision is rational.  Thus, there is no substance in these grounds.

12.  Grounds (3), (4), (7) and (10) are lacking in particulars.  The Court shall re-visit these grounds in its overall scrutiny of the Board’s Decision.  In relation to Ground (7), it is the Applicant’s burden to prove his claim under BOR 2 Risk ground.    As was noted by the Board, no charges had been laid by the police or any government authorities against the Applicant which fall under BOR 2.  There is also no evidence that his life would be at risk of arbitrary deprivation upon his return to Bangladesh.  In relation to Ground (10), the Court could not find any cases quotes by the Board which are outdated or had been overruled.

13.  Grounds (8) and (11) are in effect challenges against the finding of fact by the Board, which is not permissible, save for errors of law, procedural unfairness or irrationality in the Decision.  The Court shall re-visit these grounds in its overall scrutiny of the Decision.  In relation to Ground (8), the Applicant has not identified the news which he alleges is not officially recognized or is simply hearsay.  No news as such has been referred to by the Board.  The Board did refer to COI.  These are news and by nature are hearsays.  The question is whether they are reliable and reflective of the country condition.  All the COI referred to by the Board are from credible, authoritative, and independent sources, such as The World Factbook published by the Central Intelligence Agency of the United States; The Country Reports on Human Rights Practices published by the United States Department of State; Country policy and information note: actors of protection, Bangladesh, April 2020, published by the United Kingdom Home Office on April 2020; a report from the Australian Department of Foreign Affairs and Trade; The Annual Report 2018 published by the Anti-Corruption Commission Bangladesh, and an online article published by New Age Bangladesh on 2 August 2020.

14.  There is either no particulars or no substance in these grounds. In the absence of any particularized grounds of application, the Court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Decision sought to be reviewed. 

Overall scrutiny

15.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  

16.  The Board accepted the Applicant’s evidence, except for his surmises and speculations.  It made some further or secondary finding of facts from those evidence.  Applying the law applicable to non-refoulement protection to the Applicant’s evidence and the facts it found, the Board came to the conclusion that the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant had failed to discharge the burden of proving his fears and risks of harm.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

17.  For the above reasons, the Applicant’s leave application is 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