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

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

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 23 September 2019 for leave to apply for judicial review (the “leave application”) of a decision of the Petition Teams (Security Bureau) dated 29 August 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 17 December 2018 (the “Notice”), refusing his application for non‑refoulement protection. 

The Applicant’s claim

2.  The Applicant is a Bangladeshi national.  His personal background, the factual background leading to the present application, the basis of his claim and the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, he claims that if returned to Bangladesh, he will be harmed or killed by members of the Awami League political party (the “AL”) because he was the vice-chairman of an opponent political party, namely the Bangladesh Nationalist Party (the “BNP) at the union level.  In 2002, he was falsely accused of murder of an AL member and beaten by the police while he was in their custody.  He was acquitted by the court after trial.  After he was discharged from custody, he was assaulted by AL members.  In July 2006, after receiving a particularly threatening phone call he fled Bangladesh and eventually came to Hong Kong.

The finding of the Board

3.  The Applicant’s evidence was accepted by the Board as credible and plausible.   On his own evidence, he was only a minor political activist, had left Bangladesh for thirteen years, has not continued his political involvement and does not know of any interest shown in him since his departure from Bangladesh, except for several visits to his family home by some AL members just after he left.  The Board considered it reasonably unlikely that there would be any reason at all for those who had targeted him in the context of the political clashes taking place at the time in which he had been involved at a low level, to show any interest in him now, thirteen years later.  It found the risk to the Applicant in his local area is far-fetched and unreal.  Though it considered it unlikely that he could expect effective protection from the local police, the Board found it not unduly harsh for him to relocate outside his home area to avoid the risk of harm.  Applying the law applicable to non-refoulement protection under the Unified Screening Mechanism (“USM”) to the above facts, the Board found that the Applicant had failed to establish the factual basis to support her claims for protection under any of the applicable grounds under the USM.

Grounds for judicial review

4.  The Applicant did not advance any grounds for judicial review in his Form 86 or supporting affirmation.  At the hearing, after the legal principles applicable to judicial review was explained to him, the Applicant confirmed he had no complaint about errors of law, procedural unfairness or irrationality in the Decision.  He said he wished to stay in Hong Kong until after the coming election in his home country.  This could not be a valid ground of application.  In the absence of any specific grounds of application, the court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Board’s Decision sought to be reviewed.

Overall scrutiny

5.  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 analysed the evidence properly, tested it against common sense, inherent probability and the country of origin information.  It accepted that the Applicant is a truthful witness and accepted his evidence.  It assessed his claim on the basis of the case as he asserted.  It found, even on that basis, his feared risk is far reaching and unreal.  Even accepting that the Applicant could not expect state protection from the local police, it found internal relocation feasible to avoid the risk of harm.  The Board gave full reasons for its finding.  Applying the law applicable to non-refoulement protection under the Unified Screening Mechanism (“USM”) to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claim for 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 or 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 her burden of proving her fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

6.  For the above reasons, the Applicant’s 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