AL AMIN SHAK MOHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 303/2020

[2021] HKCFI 1099

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 303 of 2020

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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.     This application is related to the applicant’s previous non-refoulement claim in HCAL 639 of 2017 because the applicant has made a subsequent claim to the non-refoulement claim in that action, which has been disposed by the court.

2.     The applicant applies for leave to apply for judicial review of the Decision dated 20 February 2020 made by the immigration officer on behalf of the Director of Immigration (“the Director’s Decision”) refusing the applicant’s request for making a subsequent claim, pursuance to section ZO of the Immigration Ordinance, Cap.115 (“the Ordinance”), for non-refoulement protection under the unified screening mechanism.

3.     The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

THE PROCEDURAL HISTROY OF THIS APPLICATION

The applicant’s case

4.     The applicant was arrested by police on 14 February 2016 for illegal remaining in Hong Kong.  He lodged a non-refoulement claim with the Immigration Department. He claimed that if refouled, he would be harmed, or even killed, by people from a rival political party, the Awami League (“AL”), because of his active participation in the Bangladesh Nationalist Party (“BNP”).

5.     His application is based upon the Torture risk under Part VIIC of the Immigration Ordinance (“the Torture risk”), Article 3 of the Bill of Rights Ordinance, Cap. 383 (“the BOR 3 risk”), the Convention relating to the Status of Refugees (“the Persecution risk”) and Article 2 of the Bill of Rights Ordinance, Cap. 383 (“the BOR 2 risk”).

The Director’s Decision and the Board’s Decision

6.     By the Director’s Decision dated 27 January 2017, the Director rejected his claim on all four risks above. The Director assessed that future risk of harm upon the applicant’s return to Bangladesh is unlikely because of the low intensity and frequency of ill‑treatment from the AL people in the past.  The availability of state protection and internal relocation alternatives further lowers or negates the perceived risk. The applicant also failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2(i) upon his return to Bangladesh (the facts of this case do not engage BOR 2(ii) to 2(vi)).

7.     He appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and his appeal was rejected by the Board’s Decision dated 6 September 2017 (“the Board’s Decision”).  The Board found that the applicant does not face genuine and substantial risk of being subjected to severe physical and mental pain or suffering or of being killed or otherwise seriously mistreated by AL should he return to Bangladesh and there is no risk of a violation of his right to life.

The Court’s decision

8.     The applicant made an application for leave to apply for judicial review of the Board’s Decision, which forms the subject matter in HCAL 639 of 2017. By the Court’s decision in Form Call-1 dated 3 July 2018 (“the Court’s decision”), the Court dismissed his application.

9.     The applicant had appealed to the Court of Appeal against the Court’s decision and failed. He had also applied for leave to appeal to the Court of Final Appeal and failed too.

The application for subsequent claim for non-refoulement

10.     By letter dated 11 November 2019, the applicant requested the Director to allow him to make a subsequent claim for non-refoulement protection.

11.     The Director requested him to provide further information and evidence in writing in support of his application within 14 days of his letter. The applicant did not respond to this request. A follow-up letter was sent to the applicant. He responded with a written representation whereupon an interview was arranged to take place at the detention centre. In the interview, the applicant stated that he did not intend to submit further documents but he provided additional information.

The Director’s reasons for refusing his application

12.     Section 37ZO of the Ordinance provides limitation and the Director’s power in application for subsequent claim:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3)      In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.”

13.     Having considered the additional information provided by the applicant and for the reasons that follow, the Director rejected the applicant’s request for a subsequent claim for non-refoulement.

(1)     The Director relied upon his own findings in his Decision and the Board’s findings, which he was entitled to do under section 37ZO (3) of the Ordinance.

(2)     The level of risk he may face is low.

(3)     The Director and the Board both found that he was not a member of the Bangladesh National Party (the “BNP”) and that he did not attend or organize any rallies or protests for the BNP against the Awami League (“AL”).

(4)     His evidence in relation to his attendance at and organization of, BNP rallies was manufactured and that he did not attend the blockade.

(5)     His failure to seek protection in India and his return to Bangladesh significantly undermines his credibility to be in fear of his life or other harm at that time or now.

DISCUSSION

14.     In support of his application for leave for judicial review of the Director’s Decision, he put forward the following reasons in his affirmation:

(1)     He is a genuine non-refoulement claimant as he faces all the dangerous problems, harassment and torture in his country. He is unable to find any place to stay safely in his country.

(2)     The Director has made a wrong decision without proper inquiry his situation and he invites the Director to go to his country to see for himself.

(3)     He had to run away or he would be killed by his enemies.

15.     The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.

16.     In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

17.     Those grounds in paragraph 14 do not assist him. Those are his opinions without specifics in support of them. It is not necessary for the Director to go to his country to make inquiry into his situation as the Director may rely upon the country of origin information before making his decision, which he did.

18.     The Court does not find any error of law or procedural unfairness in the Director’s Decision. The findings of the Director are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.     There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

20.     I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

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