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

HCAL 2441/2019

[2025] HKCFI 2128

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2441 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 the Applicant in open court;

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 23 August 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 26 July 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 20 January 2017 (the “Notice”), refusing his non-refoulement application.

Background

2.  The Applicant is a Bangladeshi national.  He was arrested by the police on 6 September 2015 for being an illegal immigrant.  He claimed to have sneaked into Hong Kong from Mainland China on the same day.  He made a non-refoulement claim by way of written representations dated 23 September 2015 and 16 October 2015.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3]; and BOR 2 Risk^[4]. His application was rejected by the Director’s Notice.  His appeal was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

3.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claims that if returned to Bangladesh, he will be harmed or killed by his girlfriend’s father (“Shikdar”) and his associates from the Awami League (“AL”), as Shikdar objected to Applicant’s relationship with his daughter, ie the Applicant’s girlfriend, and that he is a supporter of the Bangladesh Nationalist Party (“BNP”).    

4.  The Applicant, now aged 32, was born in Pata Voag, Sreenagar, Munshiganj, Bangladesh.  He is single.  His parents and two siblings are living in Bangladesh.  He received formal education for five years and had four years’ experience working as a salesman in a textile and a car shop.

5.  The Applicant claimed that he began supporting BNP in 2010 and actively took part in the political activities of the youth wing of BNP.  He acquainted with his girlfriend since childhood, and they became lovers in mid-2012.  Shikdar, was the vice president of the Awami Sechcha Sebok League, a wing of the AL.  In late 2012, the Applicant learnt that his friend had informed Shikdar of his relationship with his girlfriend as well as his political affiliation.  His girlfriend then told him that Shikdar was angry and told his girlfriend to stay away from him.  Even though they secretly met in remote places, Shikdar eventually discovered their continued relationship.

6.  Between early 2013 and late 2014, Shikdar and his AL associates had met with the Applicant in person seven to eight times and threatened to kidnap or kill him if he did not cease his relationship with his girlfriend.  On each occasion, the Applicant remained silent to Shikdar’s threat because he was frightened.

7.  On 5 January 2015, the Applicant and 40 to 50 BNP supporters participated in a protest against an unlawful election held by the AL.  During the protest, Shikdar and 50 to 60 AL members armed with wooden poles, knives and swords arrived.   Shikdar pointed at him and asked the AL members to attack him.  The Applicant fainted after being assaulted for five to six minutes.  When he regained consciousness, he found himself at the same place and saw other BNP members were also injured.  He was hospitalised for two days.  After his discharge from hospital, he went to file a complaint against Shikdar, but the police refused to register his complaint and threatened to frame him up with criminal cases if he did not leave.  Since then, he was unable to contact his girlfriend anymore.

8.  He moved to his aunt’s place in Chittagong to avoid Shikdar and his AL associates.  A week later, he learnt from his aunt that while he was away, Shikdar and his AL associates visited her place to ask for his whereabouts.  His aunt refused to disclose.  Shikdar and his AL associates said they would come back.  Worried about his own safety, he went to Jurian, Dhaka and moved back and forth between his aunt’s and his sister’s homes for about 20 to 22 days.

9.  Whilst in Jurian, he still felt unsafe.  He went to seek protection in India on 27 February 2015.  Upon learning there was no asylum system in India, he returned to Bangladesh on 4 March 2015.

10.  On returning to Jurian, he learnt from his father that whilst he was in India, Shikdar and his AL associates visited his home in Pata Voag and asked for his whereabouts.  His father refused to disclose.  Shikdar became angry.  Before leaving, they vandalized the crops and his father’s home.

11.  In about June 2015, his father told him that Shikdar and his AL associates had visited his home in Pata Voag again in April 2015 and asked for his whereabouts.  His father again refused to disclose.  They then threatened to kill the Applicant if they located him.  His father was pushed onto the ground and sustained injuries.  The Applicant stayed in Jurian until he left Bangladesh on 31 August 2015.

12.  He claims that state protection is not available because he is associated with BNP.  He does not believe internal relocation feasible, as Shikdar and his AL associates could locate him throughout the country through their powerful network.

The finding of the Board

13.  The Applicant testified before the Board.  The Board accepted on the basis of country of origin information (“COI”) that Bangladesh can be marred by violence and there is a long-standing enmity between the AL and the BNP.  It found the Applicant displayed almost no knowledge of the party of which he claimed to have been a member.  He could not name a single platform or policy of the party and could not accurately describe the party flag, even though he claimed to have attended many rallies and meetings at which the flag was displayed.  His knowledge about the party fell short of what would be expected of someone who had attended meetings and rallies for many years.  The Board found he had, at best, a minor association with the party.

14.  It did not accept his claim that his uncle was a senior member of the BNP and rejected his explanation that he had not mentioned this fact to the immigration officer at the screening interview because he thought he would not be believed as implausible.

15.  While accepting it was possible that the Applicant had a relationship with his girlfriend who happened to be the daughter of an AL member, the Board found he had exaggerated the extent of Shikdar’s treatment of him because of that relationship by telling the Board that he had been beaten every week by Shikdar.  This is because in his NCF, he said unequivocally that he was merely threatened by Shikdar and every time, he remained silent.

16.  The Board accepted he had been involved in some skirmish and suffered injuries in a protest on 5 January 2015, but not that Shikdar had pursued him to Chittagong or that his family house and crops were vandalized and his father attacked because on his evidence he had no further contact with his girlfriend after the 5 January 2015 incident.  Shikdar had achieved his aim and there would be no need to pursue the Applicant.

17.  The Board accepted that the risk of harm to the Applicant at the hands of Shikdar or other members of the AL should he return to his home in Sreenagar to be very low.  While accepting also that it may be difficult for him to obtain police protection in Bangladesh, the Board found he could safely relocate elsewhere to avoid the risk which was localised in his home area.

18.  In conclusion, the Board found that there could not possibly be any substantial grounds for finding that the Applicant would face a real risk of ill-treatment, if refouled.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support his claims for protection under any of the applicable grounds under the USM.  Hence, it dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

19.  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].

Grounds for judicial review

20.  The Applicant did not advance any grounds of judicial review in his Form 86.  In his supporting affirmation, he said “he would like to reject the decision of the Immigration Department, as they disregarded the danger and threats he faced in [his] country,” if deported.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk of harm if refouled.  That is not permissible.  

21.  At the hearing, after the legal principle in the preceding section had been explained to him, he submitted that Shikdar has two brothers, one is a general secretary of the BNP in his area, and one is a general secretary of the AL in his area.  Both of them are influential.  Despite the AL disintegrated in August last year (which is now public knowledge), the other brother with the BNP is very powerful.  The Applicant claims he will be attacked by this brother if he is returned to Bangladesh.  These are events which occurred after the date of the Decision sought to be reviewed.  These events had never and could not have been considered by the Board.  They could not be used to criticize the Decision. 

22.  In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Overall scrutiny

23.  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. The Board analysed the evidence carefully, tested it against common sense, inherent probability and the COI.  It gave full reasons for its finding.  The centerpiece of his case is built on Shikdar’s political bias against him and his disapproval of the Applicant’s relationship with his daughter.  The Board accepted part of the Applicant’s evidence insofar as it is consistent with the COI.  It accepted there was long standing enmity between the BNP and the AL.  It accepted the Applicant had, at best, a minor association with the BNP but rejected his evidence that his uncle was a senior member of the BNP.  It accepted that Shikdar was a senior member of the AL and that it was possible that the Applicant had a relationship with Shikdar’s daughter. But it found him incredible as regards the core issues of his claim.  It rejected his first time allegation that Shikdar assaulted him every week, that Shikdar pursued him to Chittagong, etc.  Thus, he failed to establish the two bases on which the centerpiece of his claim was built.  It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM.  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 failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

24.  For the above reasons, the 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

[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 23 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 [14(1)]