RANA MD SHOHEL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL552/2023

[2024] HKCFI 2517

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 552 of 2023

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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 the Applicant being absent 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 6 April 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 28 March 2023 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 7 September 2021 (the “Notice”).

Background

2.  The Applicant is a Bangladeshi national, now aged 38. He is married. He entered Hong Kong illegally on 5 March 2020.  He was arrested by the police and referred to the Immigration Department.  On 28 November 2020, he made a non-refoulement claim.  In due course, his non-refoulement claim was assessed on four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 2 Risk[2]; BOR 3 Risk[3]; and Persecution Risk[4]. His claim was rejected by the Director’s decision in the Notice.  His appeal against the Director’s decision in 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 non-refoulement claim form (“NCF”) prepared by the Applicant with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claimed that if he was returned to Bangladesh, he would be harmed or killed by four members (“his enemies”) of the rival political party, Awami League (“AL”).

4.  The Applicant was born in Dhokla, Kushtia, Bangladesh. His wife, two children, parents, and two siblings are living in Bangladesh. He had seven years’ formal education and 19 years’ experience as a salesperson.

5.  The Applicant had been a supporter of a political party, namely Bangladesh Nationalist Party (“BNP”).  In 2014, he was promoted to the post of secretary of the Youth Wing of the BNP.  In 2019, he campaigned for a BNP candidate (Md Rashid) in a local election for the position of Upazila Chairman in which one of the contestant was Advocate Md Rashid from the AL.  On one occasion, his enemies together with 20 to 25 men equipped with pistols and big knives threatened him and his party people not to work for BNP and the BNP candidate.  To ease the situation, the Applicant said he would consider it.  His enemies and the men left.

6.  The AL candidate won the election on 24 March 2019.  That evening, while the Applicant was at his relative’s home, his enemies together with 10 AL people armed with sticks and big knives went to his home to look for him.  They told his parents that since the Applicant did not stop working for the BNP as warned, they would kill him if they found him.  Because of the threat, the Applicant stayed at his relative’s home for a few days before going to Dhaka where he stayed at another relative’s home for a few months. On 4 December 2019, he left Bangladesh and then sneaked into Hong Kong on 5 March 2020.

7.  While he was away, he was told by his parents that the AL people continued coming to his home every ten days or so looking for him and threatening to kill him.  After finding out that he was not in Bangladesh, they stopped visiting his home. They last visited his home in February or March 2020. 

8.  The Applicant does not believe the Bangladeshi authorities or police would protect him because the AL is in power as the ruling political party.  He does not believe internal relocation would be viable because AL could locate him through its powerful network.

The finding of the Board

9.  The Board studied the country of origin information about Bangladesh (“COI”) at the material time and tested the Applicant’s case against the COI. It found the Applicant’s account incredible, dubious and implausible.  It found his knowledge about politics in Bangladesh was incompatible with someone who claimed to have been involved with the BNP for years.  Hereunder are some major reasons for the Board rejecting the Applicant’s account.

10.  The Applicant said he did not campaign for the BNP in the 2018 election and his trouble only started in March 2019 because of the Upazila election.  According to the COI, the BNP boycotted the 2014 election but participated actively in the 2018 election as leader of a five party coalition including the BNP and Gono Forum known as the Jatiya Oikya Front. In answer to the Board’s question the Applicant said the Jatiya Oikya Front was a new political party which he knew nothing about. 

11.  Because of the humiliating defeat in the 2018 election, the BNP and its allies boycotted the 2019 Upazila election.  Not only did the BNP not send any candidate, it expelled members who sought to run as independents.  But in his NCF, the Applicant said he campaigned for a BNP candidate named Md Rashid.  In his testimony before the Board, he changed his account and said the BNP did not participate in the 2019 election but instructed him to campaign for the independent candidate Rashid.  However, the news articles demonstrate that Advocate Abdur Rashid was an AL nominated candidate and JM Rashid was also a high level AL member running as an ‘independent’ candidate.  None of the Rashid was a BNP member.

12.  Having rejected the Applicant’s account, the Board found there is no factual basis to support the Applicant’s claim for protection.  In addition, it found there is systematic state protection in Bangladesh but the Applicant had failed to prove a failure of state protection. Hence, it dismissed the Applicant’s appeal.

Legal principles applicable to judicial review

13.  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

14.  The Applicant did not advance any grounds for review in Form 86.  In his supporting affirmation, he set out the following five grounds of review:

(1)   The Board did not consider his claim;

(2)   The Board did not understand the document submitted by him;

(3)   The Board did not give him time to translate documents into English;

(4)   The translator was not helpful; and

(5)   The interpreter was not helpful.

15.  However the Applicant’s grounds are woefully lacking in particular. He did not attend the hearing and forwent his opportunity to provide particulars and to advance arguments to support this ground. 

(1) - The Board did not consider his claim

16.  The particulars of this ground are as follows:

“Adjudicator did not consider my claim. Adjudicator directly dismissed. He did not even take time or did not think about my life.”

17.  On the available evidence, there is nothing to support this ground.  The Board researched extensively into the COI. It tested the Applicant’s account against authoritative and credible COI.  It gave detailed and considered reasons in its 38-page Decision for rejecting his evidence. This ground is a mere assertion.

(2) - The Board did not understand the document submitted by him

18.  The particulars of this ground are as follows:

“I had some documents but all in my mother language. I submitted all but adjudicator did not accept because he could not understand.”

19.  This may be a complaint of procedural unfairness and breach of duty of joint endeavor.  But there is nothing in the evidence or the papers which suggests that this complaint calls for enquiry not to mention supports this complaint. He forwent his opportunity to advance argument to support this ground.  He gave no particulars of the documents he claimed he had.  If there is any substance in his complaint, he could at least have given in simple English, as he had done in his affirmation, the gist of those documents.  He did not even annex a copy of the documents in support of his leave application. 

20.  He had legal representation in preparing his NCF and in attending the screening interview.  He could have produced those documents for his lawyer’s consideration and submission to the Director.  Were any of those documents relevant and supportive of his case, the documents would have been translated and contained in the hearing bundle before the Board.  

21.  That apart, the decision is largely based on the Board testing his evidence against the COI.  The COI are from authoritative, independent and credible sources.  If the documents he had were credible, the information therein would also have found their way into the COI.  This ground is just a mere and convenient assertion unsupported by evidence.

(3) - The Board did not give him time to translate documents into English

22.  The particulars of this ground are as follows:

“I request him to give me some time to translet (sic) in English of my all documents and I too took some preparation but my officer had no time.”

23.  This may also be a complaint of procedural unfairness, but it lacks particulars.  There is no information when he produced the documents, when he asked for translation, who and what officer refused his request for want of time.  If any of those events had happened, it must have happened before the screening interview took place.  At that stage, the Applicant was legally represented.  If he had any such document, he should and would have produced them to his legal representative.  If they were relevant, his lawyer would have arranged for translation or asked for time to do so.  There is nothing in the evidence or the papers to support this allegation.  There is also nothing suggests that this complaint calls for enquiry.

 (4) - The translator was not helpful

24.  The particulars of this ground are as follows:

“Transletor did not help me at all. If I did not understand he became angry. Interpreter asked me to not take long time for interview as he had another job.”

25.  There is a total lack of particulars.  It is not known at what stage of the non-refoulement proceedings did this complaint arose.  If it is about translation, it would have occurred before the screening interview took place.  For the same reasons as stated in the preceding section, there is no substance in this complaint.

 (5) - The interpreter was not helpful

26.  The particulars of this ground are as follows:

“Interpreter asked me to not take long time for interview as he had another job.”

27.  There is also a total lack of particulars.  An interpreter would have been involved at numerous occasions, including at the hearing before the Board, at the screening interview and on any of the Applicant’s consultations. The Applicant gave no particulars and forwent the opportunity to make good his complaint.  This is just another of his mere allegations.

Overall scrutiny

28.  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 had studied the relevant COI and carefully tested the Applicant’s evidence against the COI.  It found the Applicant incredible and rejected almost the entirety of his case.  It was on that basis that the Board found he 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 finding of facts 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.

Conclusion

29.  For the above reasons, this 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 violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[3] 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”)

[4] 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

[5] [2018] HKCA 524 at [14(1)]