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HCAL 1814/2019
[2023] HKCFI 2743
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1814 of 2019
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Hossen Kamrul |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative Respondent |
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and |
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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 refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 2 July 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) dated 14 June 2019 (the “Decision”) dismissing the appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 9 May 2018 (the “Notice”).
2. The Applicant is a Bangladeshi national, now aged 37. He was arrested on 22 January 2015 as a suspected illegal immigrant. He claimed he had entered Hong Kong illegally earlier that same day. On 25 January 2015, he raised a non-refoulement claim.
3. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was dismissed by the Director’s Notice. His appeal against the Notice was dismissed by the Decision of the Board. He now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
4. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claimed that he would be harmed by members of a rival and ruling political party, the Awami League (“AL”) upon his refoulement due to his support of the Bangladesh Nationalist Party (“BNP”).
5. The Applicant was born in Chandpur, Bangladesh. He had three years’ education and has worked as a farmer for ten to fifteen years in his home village. He has three sisters and two brothers. He is married. His wife, his son and parents are living in Bangladesh. His father was an active member of BNP. In around 2004, he and his two brothers followed his father to join the BNP. He was an active member and used to attend meetings and rallies organised by the party. He helped putting up posters and inspired others to join BNP. He became the General Secretary of BNP Durgapur Unit. He was responsible for organizing meetings and rallies and inspire people to join BNP.
6. Tension between AL and BNP increased since the beginning of 2013 prior to the 2014 general elections. There were fighting between members of the two parties. One day, while having a meeting with his fellow BNP members they were assaulted by AL members who were armed with sticks and choppers. The assault resulted in a cut on the Applicant’s head and a wounded toe. He received several stitches and it took him 15 days to recover. Following the assault, the Applicant reported the incident to the local police. However, his complaint was not registered and the police threatened to arrest him on false charges.
7. In April 2013, his two brothers disappeared. For fear of his safety, he fled to Mainland China on 18 May 2013. He returned to Bangladesh about a month later as his visa was about to expire. Upon his return, he lived in hiding at various locations in Bangladesh, including Dhaka City, Tangail, Faridpur, Rangpur and Chittagong. He stayed in those places for a few weeks to a few months in order to avoid AL members. During this time, he experienced great mental stress.
8. AL won the 2014 elections and continued to rule Bangladesh. They became more aggressive towards BNP members. Thinking he could not go on hiding indefinitely, the Applicant fled Bangladesh again due to the relentless escalation of persecution against BNP members. He went to mainland China and from there he sneaked into Hong Kong by boat.
9. After arriving in Hong Kong, his family in Bangladesh warned him against coming back due to the hostile political climate. He also learnt that his paternal cousin, also a BNP member, was recently killed by AL members. The Applicant feared that if he returned to Bangladesh he would go missing himself just like his brothers did. Because of his past experience, he was sceptical about the ability and willingness of local authorities to give him protection. He also did not believe internal relocation would be a feasible long-term solution because of the strain on his mental health and the AL’s far-reaching influence.
The finding of the Board
10. Initially, the Applicant testified before the Board at the oral hearing and answered questions about his biographical background. As the hearing progressed, whenever he was unable to explain the inconsistencies between his oral testimony and the evidence in his NCF or the record of screening interview or whenever his oral testimony became problematic, he said he had set out everything in the hearing bundle and he could not remember, or could not recall anything. After repeating that excuse a number of times, he suddenly said he could not remember because his head was injured. But when asked about particulars of the circumstances in which the injury was occasioned, he said again that he could not remember and that everything was in the hearing bundle. He was encouraged to give further evidence, but he declined saying that he did not wish to say anything because everything was in the hearing bundle and he would like to keep them as evidence. He repeated that he could not remember anything. The Board explained to him that it had concerns about the truthfulness and credibility of his claim and if he elected not to give further oral evidence, adverse inference might be drawn against him. He responded that he understood but did not wish to give any answers. The Board put some further questions to him about COI, in particular information about the 2014 elections. He repeated he had nothing further to say, he had difficulties in his head and wanted to rely on everything in the hearing bundle as evidence.
11. The Applicant told the Board that all his five siblings were living in Bangladesh before he left for Hong Kong. Then, he said his two “brothers [had] left the house for their own life, which [he does] not know”. But he could not give particulars of the circumstances and when his brothers left. His evidence was completely different from what he said in his NCF and during the screening interview, ie that his brothers who were active BNP members had gone missing and therefore fearing that he would be the next victim he fled to China. The Board did not accept that he was suffering any condition which prevented him from being able to recall the circumstances of his brothers’ alleged disappearance, if it were true.
12. The Applicant could not explain why he did not seek protection during his first visit to China in May 2013, when he was already facing the alleged persecution. The Board also found it unbelievable that he would have returned to Bangladesh when his China visa was about to expire, if indeed he had suffered persecution from AL in the past and was afraid to return for political reasons.
13. The Board was concerned that he could not even name the political party of which he was the General Secretary and which he claimed he and his family had been supporting and were active members. The Board found his claim in his NCF that BNP did campaign and propaganda work for the 2014 general elections was at odds with the COI that BNP boycotted the election. When the inconsistency was put to him, the Applicant repeated that he had nothing further to say and whatever was in the hearing bundle was correct, he had difficulties in his head and wanted to rely on everything in the hearing bundle as his evidence.
14. After assessing his evidence, the Board found the Applicant incredible and rejected most of his evidence. It did not accept he and his family members were ever BNP members or supporters or otherwise involved in or affiliated with BNP or perceived as such. It did not accept that his brothers had gone missing, or his cousin was murdered. It rejected all the claimed past incidents. It found the Applicant was of no interest to AL, the authorities or anyone for reasons relating to his actual or imputed political opinion, views, membership, involvement and/or links with BNP or for any other reasons. It found that the Applicant concocted the whole story in an attempt to prolong his stay in Hong Kong. The Board concluded that the Applicant will not face real risk of any of the proscribed harm on those bases if refouled then or in the reasonably foreseeable future.
15. Applying the law applicable to non-refoulement protection, the Board found the Applicant is not entitled to protection under any of the applicable grounds under the USM and dismissed his appeal.
The legal principles applicable to judicial review
16. The function 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].
Grounds for judicial review
17. The Applicant did not put forward any grounds of application for judicial review in his Form 86. In his supporting affirmation, he repeated the gist of his claim and reiterated that his life will be at risk if returned to Bangladesh. He said that the immigration officer who conducted the screening interview and the Board were wrong in their decisions. He said the decision makers in the non-refoulement proceedings must be officers who had visited Bangladesh. In effect, he is seeking to challenge the Board’s finding of fact that he had failed to prove that he would face real harm or real risk of harm if returned to his home country. For reasons as explained in the preceding paragraph, this is not permissible in an application for judicial review. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.
Discussion and conclusion
18. The Decision is primarily a finding of fact by the Board. It is primarily based on the Board’s finding of the Applicant’s credibility. The Board found the Applicant incredible and rejected almost the entirety of his case. It gave detailed reasons for its finding of his credibility. It had explained to the Applicant its concerns about his evidence and gave him ample opportunities to address the Board’s concerns. The Applicant declined to answer the Board’s questions and insisted to rely solely on the documents in the hearing bundle. At one stage, he claimed he had a head injury and could not remember. He could give no particulars of the injury and refused to answer question as to how the injury was occasioned. The Board advised him the risk that adverse inference may be drawn against him if he chose not to answer. The Applicant indicated that he understood the consequence and chose not to answer, but to rely on the hearing bundle. The Board also rejected his explanation based on his head injury. Finding of fact, including finding of credibility of a witness are matters solely within the realm of the Board which the court in a judicial review will not intervene save for errors of law, procedural unfairness or irrationality. The Applicant could not have any reasons to complain about the Board’s finding of his credibility.
19. The Applicant complains that the decision makers should be officers who had been to Bangladesh to investigate his claim. The high standard of fairness does not require that the decision makers must have visited the risk state. The Board considered all the evidence available, including that from the Applicant and authoritative and credible country of origin information. It was on the basis of its finding of fact 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.
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 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 Decision is basically a finding of fact and law by the Board. 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.
Dated 20th day of October 2023.
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( Allen LEE )
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:
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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)).
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Sent to the Applicant
on 20/10/2023
Hossen Kamrul
Applicant’s ref. no:
Nil.
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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 20/10/2023
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11641/18/5/226/B1255
Director of Immigration
Putative Interested Party’s ref. no.: QA 1563/18 (Formerly RBCZ 10359/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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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 33 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)]
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