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

HCAL 77/2021

[2024] HKCFI 2332

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 77 of 2021

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;

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 2021 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 23 October 2020 (the “2020 Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in the Notice of Decision dated 20 February 2019 (the “2019 Notice”).

Procedural history and the Applicant’s address

2.  The Applicant was legally represented by Messrs Daly and Associates (“D&A”) when he filed his Form 86, giving the office address of D&A as his address.  At the same time, he also applied for legal aid to prosecute his leave application which was subsequently refused on 19 July 2021.  He appealed.  The appeal was fixed for hearing in November 2021.  D&A drafted grounds in support of his legal aid appeal and informed the Director of Legal Aid that they will represent the Applicant. Hence, the appeal was moved to the represented list to a date to be fixed.  On 7 January 2022, D&A informed the court that it was not in a position to set the case down for hearing in view of the pending legal aid appeal and undertook to update the court as soon as the hearing date of the appeal was fixed.  But they never did and the leave application was put to rest for three years until when it was assigned to this Court for processing last month.  Thus, by his legal aid appeal application and D&A’s default, the Applicant was able to delay his non-refoulement process for three years.

3.  When the court staff liaised with D&A for setting the case down for hearing, D&A informed the Court that they had lost contact with the Applicant and were going to apply to cease to act for him.  This Court does not have the Applicant’s address.  Eventually, notice of hearing on 27 August 2024 was sent by post to the Applicant’s address at 491 Tai Kei Ling, Tsuen Shap, Pat Heung, Yuen Long discovered from the Immigration Department.  That address was provided by the Applicant in his Recognisance form on 9 October 2020.  That address, without the words “Tsuen Shap” had all along been used by the Applicant in his other proceedings since 2012 and proved to be effective. Noting the anomaly and out of caution, another notice of hearing was sent to him at 491 Tai Kei Ling Tsuen, Shap Pat Heung, Yuen Long to cover a possible mistake caused by the position of the comma and the additional words, “Tsuen Shap”.  The Court staff also made numerous attempts to contact him by telephone.  On 22 August 2024, the staff was able to reach him, informed him of the hearing, advised him of D&A’s application to cease to act for him and advised him to contact D&A, which he did. 

4.  D&A’s application to cease to act was fixed to be heard on 22 August 2024.  The Applicant did not appear.  The hearing was then adjourned to be heard half an hour before the hearing of the leave application on 27 August 2024.  The Applicant turned up late.  He had no objection to D&A’s application.  That application was granted with no order as to costs.

5.  The Applicant claimed he had never received any notice of hearing sent to him by post.  Accepting his allegation to be genuine, the address he gave in his Recognisance form is ineffective.  In connection with these proceedings, he had only provided D&A’s address to court as his own address.  He was informed that the address he gave in his Recognisance form is his latest address known to the court and the court will continue to communicate with him using that address.  He was advised to make an appointment with the Court clerk after this hearing to assist him to update his address with court by filing a notice of change of address.  He was also reminded that it is his duty to update the court with his address otherwise he will be responsible for all the consequences which his failure will occasion.  After the hearing, he confirmed with the Court staff that his address in the Recognisance Form is correct and he will inform the court if it is not.  He declined filing a notice of change of address.

Background

6.  The Applicant is a Bangladeshi national, now aged 51.  He last entered Hong Kong as a visitor in August 2001.  He overstayed and was arrested by the police on 28 April 2012.  He made a claim for protection under article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “CAT claim”) on 2 May 2012.  He had failed to attend the screening interviews arranged for him by the Immigration Department thrice and opted to answer a questionnaire sent to him by post (the “CAT questionnaire”).  But subsequently, he also attended a screening interview in the presence of his duty lawyer.  His CAT claim was rejected by the Director on 24 October 2012.  His appeal against the Director’s decision was dismissed by the Petition Team of the Security Bureau on 29 November 2012.  His application for leave to apply for judicial review of the decision of the Petition Team was refused by the court on 19 December 2012.  His application for extension of time to appeal that decision was dismissed by the Court of Appeal: HCMP 73/2013.[1]

7.  On 7 February 2013, he made a non-refoulement claim under the Unified Screening Mechanism (“USM”) by written representation (the “USM claim”).  It was not until 6 December 2018 that he completed his supplementary claim form (“SCF”).  Again, he opted to answer a questionnaire (the “USM questionnaire”) in lieu of attending a screening interview.  His claim was assessed on the three remaining applicable grounds under the USM, namely: BOR 2 Risk[2], BOR 3 Risk[3], and Persecution Risk[4]. His claim was made along the line of the facts stated in the CAT questionnaire. His USM claim was dismissed by the Director’s Notice.  His appeal against the Director’s decision in the Notice was dismissed by the Board.  He now applies for leave to apply for judicial review of the Board’s Decision.

The Applicant’s case

8.  The following account of the Applicant’s case is mainly based on his answers to the CAT questionnaire, the USM questionnaire, the SCF prepared by the Applicant with legal assistance and the record of his screening interview in the presence of his lawyer.  He claimed he is a person of interest to the extortionists and members of the ruling political party in Bangladesh, namely the Awami League (the “AL”).  In gist, his claim is that he would be harmed or killed by the extortionists for failing to meet their monetary demand and by members of the AL because of his family’s association with and his participation in the rival political party, namely the Bangladesh Nationalist Party (the “BNP”), if refouled. 

9.  The Applicant was born in Debogh (West Nagar), Kashipur, Fatulla, Narayangonj, Bangladesh.  He is single.  His mother and five siblings are living in Bangladesh.  He had 11 years of education in Bangladesh.  He was the owner of a garment accessories trading shop in Dhaka, Bangladesh from 1990 to 2000.  

10.  The Applicant claimed that the extortionists had demanded money from him since 1992.  He paid them 50,000 Taka in 1993.  In March 2000, a group of 12 extortionists including two men (“R” and “S”) who held powerful positions in the BNP attended his shop.  They demanded one million Taka to be paid within 15 days or he would face problems.  He learnt from other people that R and S always worked for the AL.  Probably, they switched allegiance to AL at some stage.  Later in the month, the extortionists came to his shop to collect the money.  At the time, the Applicant’s brother was attending the shop for the Applicant who was somewhere outside.  After his brother told the extortionists that he had no money to pay, one of them picked up a paper weight and hit his brother on the head.  His brother bled and fell unconscious.  Upon seeing that, the Applicant rushed back to the shop, grabbed one of the extortionists and hit him hard with an iron rod.  A fight ensued.  The extortionists left when the police arrived.  The Applicant was badly injured.  He was taken to a private clinic for treatment while his brother was taken to a hospital.  

11.  The Applicant made a report to the Mirpur Police Station.  The police officer said they would follow up the case but to his knowledge, no action was taken.

12.  He never saw the extortionists again after the attack.  Out of fear of revenge, he closed down his shop in March 2000 and moved to Narayangonj, Munshigonj and Sylhet at the end of May 2000 for around nine to ten months.  Then, he came to Hong Kong to seek protection.

13.  After arriving in Hong Kong in 2001, he learnt from his eldest brother that he was continuously harassed by the extortionists until 2014.  The extortionists visited his family home looking for the Applicant and asking for his whereabouts.   His eldest brother also received telephone calls threatening to kidnap him.

14.  His brother told him that one of his BNP colleagues who was a close friend of his family was kidnapped on 15 September 2018. Prior to his disappearance, that colleague had received an unknown telephone call demanding a ransom of 300,000 Taka.  The colleague’s family suspected that his colleague was taken away by plain-clothe police detectives, but the police denied.  

15.  Since his father and his elder brother were heavily involved in the BNP, and he appeared next to them in BNP events, the Applicant feared he was perceived as part of the BNP within the community and would be killed or harmed by the AL if he returned to Bangladesh, as the BNP was not in power.  

16.  He does not believe the Bangladeshi authorities or police would give him protection as the AL is the ruling political party in power.  He does not believe internal relocation would be viable because the extortionists supported by the AL could locate him through their powerful network.

The finding of the Board

17.  The Applicant testified before the Board.  The Board found numerous significant inconsistencies among his evidence in the CAT questionnaire, the SCF and his testimony before the Board.

18.  First, he gave conflicting evidence as to the location of the assault.  At first, he told the Board that he was assaulted in his shop on the ground floor of Mirpur Supermarket situated at the junction of Mirpur Road with Dhaka Road.  He said he had a shop on the ground floor of that building in which he had operated an unregistered business for ten years and a shop on the second floor in which he operated a business registered under the name of Hague Trading Company.  But he could not produce any evidence of his ownership in Hague Trading Company.  He then asked the Board to refer to a certificate dated 24 April 2018 issued by the Subastu Mirpur Tower Owner Welfare Society (the “Society”) in support of the alleged assault.  The certificate was issued about six months before the hearing, ie around November 2019.  It was only put in by his solicitor less than a week before the hearing.  It purports to certify that an attack by terrorists including R and S took place at the Hague Trading Company on the second floor of Subastu Mirpur Tower situated at No 4 Darus Salam Road on 11 March 2000.  The name of the shop in which the assault took place, its floor level, the name of building in which the shop was located and the address of the building are all different from what the Applicant told the Board at the beginning of his testimony.

19.  Apart from those inconsistencies, the Board noted there was no evidence to explain who wrote the certificate and how and why the Society could remember something which happened eight years ago.  On the Court’s recognition, “eight” was a typographical error, the time interval should be eighteen years.  The Board attached no weight to the content of the certificate.

20.  Second, the Board noted numerous inconsistencies in the Applicant’s evidence as regards the weapons used in the assault and how he hit back to protect his brother and how he was attacked.  He told the Board that the extortionists were armed with hockey sticks and ordinary sticks, that he saw his brother being beaten with hockey sticks, and that he picked up a stick and hit back.  Then he changed and said he snatched a stick from one of the extortionists who was beating him with the stick.  But in his CAT questionnaire, he said he saw his brother hit on the head with a paper weight and fell unconscious, he grabbed one of the extortionists and hit him hard with an iron rod and the extortionists hit him with hockey sticks and knives.

21.  Third, the Board noted inconsistencies as to where he and his brother were treated for their injuries.  In his CAT questionnaire, he said he was badly injured in his head which required six to seven stitches and injured in his thumb which required three stitches and was sent to a private clinic for treatment while his brother was sent to a hospital for treatment.  He had to walk with a stick and had to receive physiotherapy for around two and half months.  He mentioned nothing about hospitalisation.  But in the SCF, he said he was hospitalised for three to four days.

22.  Fourth, the Board noted there are obvious changes in the Applicant’s evidence during the course of the proceedings as to his and his family’s political affiliation.  In the CAT questionnaire, he said he and his family had no political background and no political affiliation.  But in the SCF, he claimed that his father had been the secretary of the BNP at district level and convened meetings, organized rallies and addressed BNP party members at the Sylhet party office; that he and his entire family accompanied his father in those events; and he assisted his father with party programme.  In his testimony, he said his elder brother was a devoted BNP member in Narayangi and secretary for publicity.  His brother arranged public meetings and publicized outdoor events with senior BNP party leaders.  As for himself, the Applicant said he became a BNP member in 1988 or 1989.  He claimed that because of the important role played by his father and his brother, he was perceived as being part of the BNP within the community.    

23.  In view of the inconsistencies relating to the assault and the Applicant’s evidence about his political affiliation, the Board found the Applicant had failed to prove the alleged primary facts in support of his claim, ie the demand, the threats, the assault and the risk of harm from the extortionists and the government run by the AL.  Though the Board did not actually say so, its finding could only be made on the basis that it had found the Applicant not credible and was not satisfied that the alleged demand, threat and assault had indeed been made.  This finding of fact is fatal to the Applicant’s claim on all four applicable grounds.  But the Board went on to make further finding of fact on the basis of the case as the Applicant alleged.

24.  On the Applicant’s evidence, nothing happened to him during his stay in Narayangonj, Munshigonj, and Sylhet.  The Board found his fear being kidnapped was self-induced and not well-found.  It also found that the Applicant was not an individual targeted for personal persecution by any of the political parties, as no member from any political party had ever approached him or his family when he was still in Bangladesh.

25.  While the Board accepted the disappearance of the Applicant’s BNP colleague, it could not attach any relevance between that disappearance and the feared risk of harm.

26.  The Board accepted on the basis of authoritative and credible country of origin information (“COI”) that there are reports about police failures, police being prone to political influence and corruption in Bangladesh.  However, the same COI also suggested that there are objective indications that the Bangladeshi government has taken practical steps to maintain public order and safety in its jurisdiction and to improve effectiveness of the police and monitor their conduct.  On balance, the Board found there was no reason for the Applicant not to seek police protection.

27.  As the Applicant had failed to prove the alleged primary facts, he must have also failed to show that he would face a genuine and substantial risk of being subjected to such ill-treatment.  Even assuming the injuries suffered by the Applicant were caused by the extortionists as he alleged, they did not attain the minimum level of severity in support of his claim under BOR 3 Risk ground.  The Board therefore found he had failed to establish his claim under this head. 

28.  As for BOR 2 Risk ground, the Board found the Applicant’s evidence is incapable of substantiating even to a low standard of proof that there is a foreseeable personal real and present risk that he would be deprived of his life arbitrarily by the Bangladeshi government or that the government would not or could not protect him from the risk of harm he alleged.  On the Board’s finding, that latter risk was not even proved.

29.  As for Persecution Risk ground, the Board found the Applicant’s dispute with the extortionists was a monetary dispute which had nothing to do with race, religion, nationality, membership of a particular social group or political opinion and therefore did not fall within the 1951 Convention relating to the status of Refugees and its 1967 Protocol as to entitle him to protection under this ground.  Even assuming that his fear of harm from the AL was on account of his political affiliation, he had failed to prove his fear was well-founded because on his evidence, nothing had happened to him when he was still in Bangladesh.  He was also allowed to leave the country using his true identity via usual immigration channel which indicated that he was not targeted by the government.  Furthermore, his father and brothers who were much more active than he was in the BNP are still living in Bangladesh without problem from the AL.

30.  For the above reasons, the Board dismissed his appeal and affirmed the decision in the Director’s Notice.

Legal principles applicable to judicial review

31.   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.

Grounds for judicial review

32.  In his Form 86, the Applicant advanced the following grounds for review that:

(1)  Failure to engage the proper approach in assessing credibility; making adverse credibility findings;

(2)  Failure to adhere to high standards of fairness; and

(3)  Failure to take into account relevant COI.

(1)   Failure to engage the proper approach in assessing credibility

33.  The Applicant was unable to submit what was the proper approach to be adopted in assessing a witness’ credibility nor was he able to identify what was wrong in the Board’s approach.  All that he did was to express his disagreement with the Board’s finding.

34.  The Board had not expressly stated the approach it adopted in assessing the Applicant’s credibility.  It was aware of the low standard of proof required as it had mentioned such low standard in Paragraph 63 of the Decision in relation to the BOR 2 Risk ground.  Apparently, the Board adopted the usual approach of testing Applicant’s evidence against intrinsic and extrinsic probability, common sense and internal consistency.  Understandably, a non-refoulement claimant fleeing from his country for his life may have difficulties in obtaining or producing supporting or documentary evidence.  Usually, if a claimant gives evidence which is internally consistent, he would have satisfied the low standard of proof required.  His evidence would be treated as credible unless it is inherently improbable, contrary to common sense or to facts which the decision maker is satisfied with.

35.  The Board found a substantive part of the Applicant’s evidence on material issues are incredible.  Those issues are related to events which a tribunal of fact would not expect an honest witness would have been mistaken, if they were his experience of what had happened to him.  If the Applicant had operated a shop in a building for ten years, it is impossible that he did not know its proper address.  If a traumatic incident had occurred with all the fine details he described, he could not have mistaken as to whether it occurred on his second floor shop or ground floor shop.  If the Applicant had been taken to a private clinic for treatment after such a traumatic event, he would not have mistaken it to be a hospital.  If he had been hospitalised for three or four days, he would not have mistaken the hospital for a clinic.  If he was a full member of the BNP in 1988 or 1989, he would not have said in the CAT questionnaire in 2012 that he and his family had no political affiliation.  If his brother had been and was a publicity secretary of the BNP, he would not have written in the CAT questionnaire that his family had no political affiliation when persecution on account of political opinion was one of the two basis of his claim for protection.  In the circumstances, it was open to the Board to find, as it did, that the Applicant was incredible.  Having rigorously examined the Decision with anxious scrutiny, this Court could not identify any errors in the approach adopted by the Board.  A witness credibility is a finding of fact solely within the province of the Board which the Court in a judicial review will not intervene. 

(2)   Failure to adhere to high standards of fairness

36.  The thrust of the Applicant’s complaint under this ground is that he was not allowed sufficient time to obtain documents and that the decisions were made very quickly suggesting they were pre-determined decisions made without serious or proper consideration. He also said the time-frame did not allow him enough time to obtain the documents.  It is a general and un-particularised complaint. 

37.  The procedural history indicates that the Applicant came to Hong Kong in August 2001 allegedly to seek protection.  He never sought protection until after he was arrested on 28 April 2012 almost 11 years later. Then, he lodged his CAT claim on 2 May 2012.  He was provided legal assistance by the Duty Lawyer Service.  He was not specific about the time-frame within which he was allowed to obtain supporting documents since he commenced the proceedings.  It is impossible to evaluate his complaint.  His CAT claim was rejected on 24 October 2012.  His appeal was dismissed on 29 November 2012.  His leave application in respect of that decision was refused on 19 December 2012.  Then, he started his USM claim on 7 February 2013.  Under such time frame, it is difficult to see any substance in his complaint. Nevertheless, the point in issue is not about sufficiency of time for him to prepare his CAT claim, but his USM claim.  The procedural history shows he had twelve years to obtain evidence and to prepare his claim before he started his CAT claim and after that the USM claim. 

38.  It was with the above background that he commenced his USM claim on 7 February 2013, eleven and half years after his arrival in Hong Kong allegedly to seek protection.  But it was not until 6 December 2018 that he completed his SCF.  He had another five years and 10 months to obtain documents, if he had not already done so when lodging his CAT claim.  It is difficult to see how in the circumstances he could launch a complaint for not being allowed sufficient time to obtain supporting documents when he should have made them available in the past eighteen years before he even lodged his SCF in support of his USM claim. 

39.  As for his complaint that the CAT decision was made within 15 days which was so short as to suggest that it was made without serious consideration, he gave no basis or reason for his surmise.  Fifteen days is not so short as to suggest the CAT decision was a decision with a predetermined outcome.  In any event, the issue before the Court is about the USM decision and not the CAT decision.  The Applicant completed his USM questionnaire on 14 February 2019. The Director’s decision in the Notice was made on 20 February 2019 six days later. The interval was short. The shortness by itself is evidence of lack of proper consideration.  But a scrutiny of the Notice shows the contrary.  In the Court’s view, it is a well-reasoned decision.  Again, the Notice is not the decision in issue.

40.  The Applicant’s appeal was heard before the Board on 21 May 2020.  It was not until 23 October 2020 that the Board issued its Decision.  The Applicant could not have any basis to argue it was a hasty decision and on that basis one which was made without proper consideration.

Failure to take into account relevant COI

41.  The Applicant could not identify any COI which he alleged the Board had failed to take into account or any irrelevant COI which it had taken into account.  The Board had considered a number of COI from authoritative and credible sources, including Country Reports on Human Rights Practices for 2019 Bangladesh published by United States Department of State, the Country Policy and Information Note: Background information including actors of protection and internal relocation, Bangladesh and Country Policy and Information Note Bangladesh: Opposition to the government published by the United Kingdom Home Office.  It had considered COI supporting the Applicant’s claim of police failures, corruption and police being prone to political influence and also COI supporting availability of adequate state protection.  The conclusion drawn by the Board is a finding of fact solely within its province which the Court in a judicial review will not intervene, save for errors of law, procedural unfairness or irrationality in the decision.

Overall scrutiny

42.  Having rigorously examined the Director’s Notice of Decision, the Board’s Decision, the Applicant’s grounds for application 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 three remaining applicable grounds under the USM; the burden of proof and standard of proof and quoted relevant precedents in support of its decision.  The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice.  It correctly identified the factual and legal issues involved in the claims.  The Applicant’s claims are founded on his fear of harm by the extortionists and members of the AL.  The Decision of the Board was based on its finding of the Applicant’s credibility and assessment of his risk of harm.  The Board had carefully weighed the evidence and assessed his credibility.  The Board found him incredible and that he had failed to establish the factual basis in support of his claim.  As the Applicant bears the burden of proof of his claims, such a finding is fatal.  The Board did not stop there.  It also assessed his claim on the basis of the case as he asserted.  Even on the basis of his evidence, the Board found that there was no factual basis to support his fear of harm, ie his fear of harm and risk was not well-founded.  It was also on that basis that the Board found that there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the three remaining applicable grounds.  

43.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Board’s Decision is a finding of fact which is 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.  There are no errors of law or procedural unfairness in its Decision.  The Board observed a very high standard of fairness.  Its Decision does satisfy the enhanced Wednesbury test.  Having considered his grounds for application, the Court is satisfied that the Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.

Conclusion

44.  For the above reasons, this leave application has no prospect of success. Accordingly, 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