|
HCAL 239/2020
[2024] HKCFI 2991
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 239 of 2020
|
BETWEEN
|
| |
Repon Md Asaduzzaman |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge To:
1. Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; 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 22 January 2020 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 9 January 2020 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 26 June 2019 (the “Notice”). He named the adjudicator of the Board as the proposed respondent and the Board as the proposed interested party. As the Board should be the proper proposed respondent and the Director the proper proposed interested party, leave is granted to amend the Form 86 to the above effect.
Background
2. The Applicant is a Bangladeshi national. He entered Hong Kong illegally on 30 December 2018 and surrendered to the Immigration Department on 2 January 2019. He made a non-refoulement claim on 22 and 24 January 2019. 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 against the Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision. However, he was removed to his home country before his leave application came to be processed.
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. Initially, he claimed in his NCF that if returned to Bangladesh, he will be harmed or killed by a loan shark (the “loan shark”) or his associates for being unable to repay a loan. At the screening interview, he made an additional claim that he will be harmed or killed by members of the Awami League (the “AL”) because of his participation in a rival political party, namely the Bangladesh Nationalist (“BNP”).
4. The Applicant, now aged 44, was born in Village Horiasa, Ward No.1, Jajira, Shariatpur, Bangladesh. He is married. His wife and son are living in Bangladesh. He had received 14 years’ formal education and obtained a Bachelor of Arts degree from the Jajira Degree College in 2000. He had 18 years’ experience working as a private tutor, teacher and proprietor of a medical store.
5. He joined the BNP in 1996 or 1997 and became the vice-president of a sub-district branch of Jubo Dal (the youth branch) of the BNP in 2018. On 25 October 2018, he was assaulted by a group of 15 to 20 AL members in his local area, for taking up the post of vice-president in a committee on 22 October 2018 and for breaching his promise not to be involved with the BNP. He was severely beaten and admitted to the hospital for seven days.
6. In addition, in December 2018, he borrowed a loan of 10 million Bangladeshi Taka from the loan shark to be repaid within 7 days for his mother’s heart surgery. The loan shark was a person well known to associate with the ruling AL. He was unable to repay. The loan shark and his associates went to his shop and beat him up. After the attack, he received medical treatment from a private doctor without going to hospital.
7. He returned to his shop three days later. Four to five people, claiming to be the loan shark’s associates, came. They vandalised his shop and assaulted him. After receiving treatment from a private doctor, he went to the Jajira police station to make a report but the police refused to register a complaint because the loan shark was an influential politician of AL.
8. Two days later, the police went to his home to arrest him for a robbery case without showing him an arrest warrant. During his detention, the police did not give him food. They told him that they could shoot him and make it look like a police encounter, unless he transferred his shop to the loan shark and repaid the loan. The police also refused his request for legal representation. However, he was released after four days without being taken before the court.
9. The loan shark also kidnapped his cousin and demanded a ransom. His cousin was released after four to five days and suffered mental trauma.
10. He does not believe the Bangladeshi authorities and police would protect him. He moved to all eight divisions in Bangladesh in December 2018 to avoid the problem. On 23 December 2018, he left Bangladesh for Mainland China by paying a bribe to the immigration officer.
The finding of the Board
11. The Board found the Applicant’s evidence about his role or position in BNP inconsistent. He could not even tell the full names of the other vice presidents of the local BNP branch. Based on authoritative and credible country of origin information (“COI”), the Board could not accept that he would not have had any problems whatsoever with the AL for 20 years between 1996 and 2016 if he were indeed active in his area in 2016 and was deemed to be worthy to be framed in an entirely manufactured criminal case. On this premise, the Board found that he was never involved in politics, and that he had never been of any adverse interest to the AL.
12. Regarding the loan, the Board considered it inconceivable that a dedicated BNP member as the Applicant claimed to be would or could have borrowed money from a loan shark well known to be associated with the ruling AL. Hence, it rejected his claim about the loan and threat from the loan shark.
13. Having so rejected the centrepiece of his case, 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 to Bangladesh. It found he had failed to establish the factual basis in support of his claim for protection under any of the four applicable grounds. Hence, it dismissed his appeal against the Director’s Notice.
Legal principles applicable to judicial review
14. 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].
Discussion and conclusion
15. The Applicant did not advance any grounds for review in Form 86 or his supporting affirmation. In the absence of specific grounds of application or grounds with sufficient particulars, the Court 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.
16. 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 found the Applicant incredible and rejected almost the entirety of his case. This is a finding fact solely within the realm of the Board. The Board analysed the evidence properly, tested it against common sense and inherent probability and gave reasons for its finding. 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. This is a mixed finding of fact and of law. Insofar as it is a finding of fact, it is exclusively within the realm 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. Insofar as it is finding of the law, it is absolutely correct. 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. Accordingly, the Applicant’s application for leave to apply for judicial review is refused.
17. The Court does not have the Applicant’s contact address in his home country. The Order and Form CALL-1 are therefore sent to the Director of Immigration with a request that the Department will use its best endeavor to forward them to the Applicant.
Dated the 29th day of October 2024
| |
( Seline Sze )
for Registrar, High Court
|
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
|
|
Sent to the Applicant
on 29/10/2024
Repon Md Asaduzzaman
Applicant’s ref. no:
Nil. |
|
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 29/10/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 16078/19/7/44/B2059
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 331/19 (Formerly RBCZ 10217/19)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
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)]
|