|
HCAL 1965/2023
[2025] HKCFI 1717
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1965 of 2023
|
BETWEEN
|
| |
Shikdar Babu Md Parvej |
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:
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 1 November 2023 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 5 October 2023 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated dated 3 February 2021 (the “Notice”), refusing his application for non-refoulement protection.
Background
2. The Applicant is Bangladeshi national, now aged 35. He was arrested by Customs & Excise officers on 4 September 2020 for being an illegal immigrant and dealing in goods to which the Dutiable Commodities Ordinance applies. He then made a non-refoulement claim by written signification on 30 September 2020. In due course, her 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 claim 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.
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 (the “ROI”) in the presence of his lawyer. In gist, he claims that if returned to Bangladesh, he will be ill-treated or even killed by members of the Awami League political party (the “AL”) because of his support and position in the rival political party, namely Bangladesh Nationalist Party (the “BNP”); and prosecuted by the police for false charges.
4. The Applicant had received 17 years of formal education and obtained a master’s degree in business management. His entire family supports the BNP. His father had been a member for more than 20 years. He joined the BNP in 2014 as a worker and became a campaign secretary in 2016. He was being pursued by many AL leaders, including Mohsin Bhuiyan (“Bhuiyan”) and Shamin Osman (“Osman”).
5. He said that on 16 December 2016, ten police officers came to his home looking for him. He was not at home. They told his parents that he was being suspected of two criminal charges regarding a bomb explosion and assault on a district commander. He believed Bhuiyan framed him for the charges because if he was removed from the political scene, there would not be so many supporters in BNP’s meetings and rallies. He did not turn himself into the police because he was afraid, but continued to work as campaign secretary. On being told that two or three police officer had come to his home looking for him again, he fled to Dhaka and stayed in his maternal uncle’s home between January 2017 and January 2019. He returned to his home village to participate in BNP activities. Between mid-2018 and early 2019, his uncle told him there were four more visits by the police looking for him. He also received threatening calls from MB from time to time.
6. On 8 January 2019, he returned to his home to avoid causing trouble to his uncle. When he saw 20 to 30 people of the Jubo League, which is the youth wing of the AL, coming to his home, he left through the back door. The Jubo League people left a message that they would kill him next time. He went to stay with his friend in Chashara. He was arrested by the police on 12 February 2019 while attending a BNP rally for the release of their leader Khaleda Zia. He was told by the police that he was wanted for two criminal charges and detained. On 14 March 2019, he was released on bail.
7. Between April and July or August 2019, he went to India on many occasions for his safety and then returned to Bangladesh. Between August and December 2019, he travelled to China and India. Eventually, he flew to China on 18 December 2019 and then sneaked into Hong Kong.
8. He believes the Jubo League people will use their power and connections with the AL to persecute or even kill him and he could not seek protection from the police as they are corrupt. He does not think internal relocation feasible since the Jubo League people are everywhere.
The finding of the Board
9. The Applicant’s appeal was heard on 3 January, 2 March and 13 April 2023. He testified before the Board. The Board found numerous significant inconsistencies between his testimony in the second hearing and his evidence in his NCF and ROI. The Applicant also made new some allegations. Hereunder are some of the significant inconsistencies.
10. At the second hearing, the Applicant said his main fear of returning to Bangladesh is the Rapid Action Battalion (the “RAB”) which is renowned for arresting and killing people. The RAB, which he claimed to be his main fear, is a new allegation which had never been mentioned in his NCF or ROI.
11. He said he fears he will be shot by the AL people, in particular, Osman who is a senior leader of the AL and a member of the parliament for his district. He also made a first time allegation that when he was delivering a speech in a BNP meeting in Chashara in 2016, Osman brought 50 to 60 men and his bodyguards armed with sticks to the meeting. They told the BNP members to disperse and assaulted them. He was hit on the head with the butt of a gun by Osman’s bodyguard and assaulted with sticks by the others. Osman also threatened him in the face that he could not exist in that place and that he will be killed. Though Osman had been mentioned in the NCF, his very violent actions and threat uttered in Chashara in 2016 had never been mentioned before.
12. He said he had also been threatened by Bhuiyan who is a senior leader of the AL and had several cases of assault, kidnaping, maiming and murdering against him. He detailed a private dispute with Bhuiyan over the occupation of his friend’s land and that Bhuiyan had sent 20 to 25 workers armed with rifles, hockey sticks and machetes to his home in April to May 2017 to threaten him. Except for his fear for Bhuiyan, nothing else had been mentioned in his NCF or ROI. The Board considered the omissions are material.
13. The Board found much of his evidence was based on hearsay or was his own speculations unsupported by credible evidence. It also found some of his conduct inconsistent with his alleged fear of returning to Bangladesh, such as his many trips to India and China and returns to Bangladesh.
14. The Board considered the documentary exhibits produced by the Applicant at the third hearing. Some of them supported his participation in the BNP activities. The Board accepted that fact as proved. The First Information Report dated 16 December 2016 and 30 October 2017 supported his claim that there may be outstanding charges against him, if authentic. Giving him the benefit of doubt that they are authentic, the Board nevertheless found there is nothing to suggest that the charges are outstanding. This is because the Applicant was able to depart and re-entered Bangladesh without problems many times between April and December 2019 using his own passport. The remaining documents are country information about the political environment in Bangladesh, the RAB, corruption in government, the police and the judiciary, conflicts between the AL and the BNP and internal relocation. The Board did not consider they advanced the Applicant’s claim concerning the pending criminal cases. Further, despite there are indications of corruption and human rights violations in Bangladesh, it appears from the information that even if the Applicant were arrested and tried on his return to Bangladesh, he could expect a fair trial. All these indicate that there were no outstanding charges or warrants against him and his risk from this harm is low.
15. In view of the above and other significant differences between his testimony and his evidence in his NCF and ROI, the Board found the Applicant was not a truthful witness. It found what the Applicant had presented in his NCF and ROI is not credible and could not be relied on. While accepting he may have been a campaign secretary for the BNP and participated in its activities, the Board found his claim regarding the actions of the AL members, including Bhuiyan, Osman and their men, have been fabricated. It was not satisfied that he had proved a real and substantial risk that he would be subjected to the proscribed harm and risk of harm, if refouled to Bangladesh.
16. Hence, the Board dismissed his appeal against the decision in the Notice.
Legal principles applicable to judicial review
17. 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
18. After the legal principles in the precedent section had been explained to him, the Applicant said he had no complaint above errors of law, procedural unfairness or irrationality in the Decision and left it to the Court to look for such vitiating elements in the Decision for him.
19. The Applicant said that the political situation in Bangladesh is unstable. The Board did not take his problems seriously. He had submitted documents to the Board which supported his claim, but the Board hurriedly evaluated his documents and made the wrong Decision. Except for the vague accusation of the Board making hurried evaluation of his documents, these grounds of Applicant are challenges of the Board’s finding of fact which is impermissible save for errors of law, procedural unfairness or irrationality in the Decision. On the fact, the Board held three hearings. The documents were produced at the last hearing on 13 April 2023. The Decision was issued on 5 October 2023 after almost six months. On the face, there is no evidence or suggestion that the Board evaluated his documents hurriedly and hurriedly made the Decision.
Overall scrutiny
20. 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 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 conducted a rehearing. It assessed the Applicant’s evidence carefully, tested it against common sense and inherent probability. It found his incredible as regards the core issues of his claim. It found numerous and significant inconsistencies between his testimony and his evidence in the NCF and the ROI. It found him incredible. It gave full 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 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, 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
21. For the above reasons, the Applicant’s leave application is refused.
Dated the 28th day of April 2025
| |
( 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 28/04/2025
Shikdar Babu Md Parvej
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 28/04/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 17662
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 10641/20 (formerly RBCZ 810/20)
Department of Justice,
Senior Assistant Law Officer
(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)]
|