ABUL BASHAR AKANDO v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 557/2019

[2022] HKCFI 1425

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 557 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;

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 refused.

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

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated18 February 2019 (the “Decision”). He did not name the intended respondent in the Form 86. But in his supporting affirmation, the Board is named as the defendant in this application. Accordingly, leave is granted to amend the Form 86 by naming the Board as the intended respondent.

2.  The Applicant is a national of Bangladesh, now aged 45. He entered Hong Kong on 21 April 2013 illegally. He was arrested by the police on 15 August 2013. On 18 August 2013, he raised a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. His application was dismissed on 2 January 2014. He did not further pursue that application. That decision became final. Following the implementation of the Unified Screening Mechanism (“USM”), he raised a non-refoulement claim under the USM on 6 February 2014. By a Notice of Decision dated 29 June 2018, the Director rejected his claims on the three remaining grounds under the USM, namely, BOR 3 Risk[1]; Persecution Risk[2]; and BOR 2 Risk[3] grounds.

3.  He appealed to the Board against the decision of the Director in the Notice. By its Decision dated 18 February 2019, the Board dismissed his appeal. On 27 February 2019, he filed his application for leave to apply for judicial review of the Decision of the Board. The Applicant did not request an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in the torture claim form and supplementary claim form prepared by him with legal assistance and the records of his two screening interviews in the presence of his lawyer. In gist, the Applicant’s claim is based on his feared harm and risk from members of AL because of his political opinion and by the police for a false case also made for political motive.

5.  The Applicant was born and raised in District Shariatpur, Bangladesh. He is married with two children, all of whom reside in District Shariatpur. He has ten years of working experience as a salesperson in Dhaka, Bangladesh between 1996 and 2006.

6.  The Applicant started supporting the Bangladesh Nationalist Party political party (“BNP”) since he was 18 years old. His family also supported BNP. He joined the BNP before 2000 and is still a member. He returned to his home village after 2006 to participate in politics.

7.  A few days before the election in 2009, the Applicant was falsely accused of assaulting a female resident of his area (“False Case No. 1”). He alleged that the motive of the false accusation was to prevent him from participating in the election. He was released two days after because of lack of evidence. Subsequently, he won the election and was elected to be the member of the No. 3 Ward under Sholpara Union Council in January or February 2009.

8.  About 10 to 12 days after the election in February 2009, while he was heading to the Union Council office with other BNP colleagues the Applicant was attacked by eight to ten AL people with wooden sticks and bamboo sticks. The attack lasted for about 15 minutes. The attackers accused him of winning the election by stealing votes. The Applicant suffered bruises on his arm and his back. He was refused treatment in a government hospital by AL people and had to seek treatment from a private clinic instead. His colleagues were also attacked and sustained minor injuries. On the next day, the Applicant tried to file a police report but the police refused saying that his complaint was “a self-made story”. The Applicant believed the police acted under AL’s influence.

9.  Two days later, the Applicant learnt from his colleagues that in respect of the above incident, a police complaint had been made against him and the three BNP colleagues accusing them of attacking the group of eight to ten AL people (“False Case No. 2”). Because of the false case, the Applicant fled to Dhaka with his family at the end of February 2009. He moved to different places in Dhaka.

10.  In around late 2012, the Applicant saw eight of the attackers standing outside the main gate of his house. The attackers did not see him. After settling his wife and children with his father-in-law, the Applicant decided to flee alone.

11.  When he learnt that the AL people asked his parents for his whereabouts, he decided to flee to Hong Kong. After arriving in Hong Kong, he learnt from his parents that the AL people harassed his parents and the police looked for him from time to time. This continued to be the case even in April 2018. The AL people also threatened to kill him if they saw him.

The finding of the Board

12.  The Applicant’s case of harm was founded on False Case No. 2. The Board assessed his risk and harm on the basis that the Applicant had a warrant of arrest issued against him and that he was in fear of harm on account of his political opinion[4]. However, the Board was not convinced that he had disclosed the true facts relating to the issue of the warrant for his arrest. Even accepting that the Applicant had been framed for attacking eight to ten AL people, the Board held that such attack would have been “one of the numerous mundane occurrences in the locality”[5]. The Board therefore doubted the Bangladeshi police would have continued to look for the Applicant five years after the attack as the Applicant alleged. It also considered the results in the election in February 2009 was “local and transient” and that the Applicant’s story about the AL people following him to Dhaka almost 4 years after the election in 2012 was “ridiculous”. The Board “put” to the Applicant that he had taken part in a violent uprising against the government in which serious injuries to the police “or” AL people were caused. Despite that was denied by the Applicant, the Board went on to find that the alleged pursuits by the police and the AL people could not be explained by the story advanced by the Applicant but that these pursuits might have been motivated by a different reason not disclosed by the Applicant. The Board was “fully satisfied that there is a warrant of arrest taken out by the police … and that it must be based on serious crime”[6].

13.  The Board was not satisfied that: (i) the Applicant’s fear was on account of his political opinion; (ii) his fear of persecution was well founded; (iii) he would face any genuine or substantial risk of being subjected to torture or other cruel, inhuman or degrading treatment or punishment; and (iv) he would be subject to BOR 2 Risk, if refouled to Bangladesh.

14.  Applying the law applicable to non-refoulement protection under the USM, the Board found that the Applicant had failed to discharge the burden of proving his entitlement to protection under any of the remaining three applicable grounds under the USM. Hence, the Board dismissed his appeal.

Legal principles applicable to judicial review

15.  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[7].

Grounds for judicial review

16.  The Applicant did not state his grounds for judicial review in the Form 86 or in his supporting affirmation. In his supporting affirmation, he only exhibited the Notice and the Decision. He had been invited by the Court via its letter dated 25 May 2021 to advise the Court of his first language and contact telephone number and to file submissions. He only responded to the first two items and exhibited a copy of the Decision. He did not file any submission.

17.  In the absence of specific grounds of application, 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. The essence of the Applicant’s complaint is that he disagrees with the finding of the Board that it is safe for him to return to his home country. In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Bangladesh.

Error of law

18.  The Court was troubled by the Board’s finding in paragraph 42 of its Decision as quoted in the penultimate sentence in Paragraph 12 above. The Board may be criticised for putting to the Applicant that he had taken part in a violent uprising against the government in which serious injuries to the police or AL people were caused and finding that the warrant was taken out based on serious crime. That allegation was denied by the Applicant. In the absence of credible contrary evidence, that denial is final. It may be argued that the Board committed an error of law in making a finding based on conjecture and not supported by evidence.

19.  The Applicant bears the burden of proving his fear and risk, even though on a very low standard. It was open to the Board to test the Applicant’s story against common sense and inherent probability and to reject his story on that basis. As noted by the Board, the Applicant never saw it fit to explain why he should go into hiding, not only by himself but with his entire family, for the kind of false case as a mundane street fighting. Proving fear or risk alone is not sufficient. The Applicant must also prove the nexus between his fear and the proscribed harm under the USM. By reason of the Applicant’s withholding from the Board the underlying cause of his fear, the Board’s finding that the alleged pursuits by the police and the AL people could not be explained by the story advanced by the Applicant could not have been faulted. The pursuits by the police or AL people might have been motivated by a different reason not disclosed by the Applicant. Whatever was the reason did not matter. It was not necessary for the Board to make a finding what that reason was because it was the Applicant who bore the burden of proving his fear was well-founded and that he would face genuine and substantial risk to his life, if refouled. The Board was entitled to come to the conclusion that the Applicant had failed to discharge the burden of proving the factual case in support of his claims for protection under the USM. Had the Board paused there, its Decision would have been un-reproachable. The additional finding that the warrant was issued for a more serious crime was unjustified and unnecessary. However, for the above reasons, that finding did not affect the validity of its Decision because by withholding the true reason for his fear the Applicant failed to prove the factual case in support of his claims for protection. The error of law, if there was one, is not material.

Discussion and conclusion

20.  Having rigorously examined the 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. The Board found the Applicant not credible and that he has failed to prove the factual basis to support of his claim. It was on that basis that the Board found that he has failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds. Except for the blemish discussed in paragraphs 12, 17 and 18 above which was not material, the Court could not detect any error of law in the Decision. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. 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 Decision could not have been faulted. The proposed judicial review has no realistic prospect of success.

21.  For the above reasons, leave to amend the Form 86 as aforesaid was granted and the amended application for 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