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

HCAL 2073/2019

[2024] HKCFI 3059

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2073 of 2019

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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Mr Molla Masum (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 24 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 24 October 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is a Bangladeshi. He was born on 7 May 1978 in Shariatpur, Bangladesh. He received 9 years of education and worked as a knitting operator, a supervisor and a manager.

The Claim

3.  The Applicant relied on the following facts for his claim. The Applicant joined the Bangladesh Nationalist Party (“BNP”) in mid-2008 and was appointed as the general secretary of the BNP in his village in 2009. His duties as general secretary included arranging meetings for members and organizing protests against the rival political party, the Awami League (“AL”).

4.  In the evening of a day in February 2012, some AL members attacked the Applicant and his cousins with hockey sticks and bamboo sticks because the Applicant refused their demand to switch to AL. The attack lasted about 15 minutes and the Applicant suffered bruises on his body. The Applicant and cousin were taken to a village doctor where he was prescribed with painkillers and ointments (“Incident 1”).

5.  The Applicant’s elder brother reported Incident 1 to the police but they did not take any action. The Applicant informed the BNP leader about Incident 1 but was told that the BNP was too weak to stand against the AL and he should be careful about the AL people.

6.  The Applicant claimed that he was attacked by the AL people for refusing to join the AL on four other occasions (Incidents 2-5) in March 2012, April 2012, the end of April 2012 and July 2012. Notably, in the 4^th Incident, the assailants burned down the kitchen outside the Applicant’s house and threatened to kill him.

7.  The Applicant had also reported the 2^nd, 4^th and 5^th Incidents to the police but the police did not register his complaints nor take any actions.

8.  After the Incidents, to avoid the threat of the AL people, the Applicant quitted his job and moved to hide in his uncle’s house in Rajnagar village, which was around 1 to 2 hours travelling by bus from the Applicant’s village. He did not encounter the AL people there.

9.  In September 2013, the Applicant went to Malaysia with the help of other BNP members but was deported back to Bangladesh three days later. In May 2014, he tried to go to Malaysia via Sri Lanka but was refused permission to land in Malaysia and was removed back to Bangladesh. After returning from Malaysia, the Applicant continued to hide in his uncle’s house.

10.  In September 2014, the Applicant travelled to Mainland China with the help of other BNP members and later sneaked from China into Hong Kong.

11.  The Applicant claimed that he would be harmed or killed by the AL people if he were returned to Bangladesh.

Procedural history

12.  The Applicant illegally arrived in Hong Kong on 22 September 2014 and was arrested by the police on the same day. By a written representation of 26 September 2014, the Applicant lodged the Claim.

13.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115;

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR; and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

14.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

15.  On 22 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the interested party.

The DOI Decision

16.  The Director noted that the low intensity and low frequency of past ill-treatment from the AL people was indicative of a small future risk of harm upon the Applicant’s return. The AL people outnumbered the Applicant and were armed with weapons in all the Incidents. They could have killed the Applicant easily if they really had such intention. The Director also did not accept that the ill-treatment claimed to have been experienced by the Applicant had attained a minimum level of severity to invoke non-refoulement protection.

17.  The Director also considered that the Applicant’s involvement in BNP was limited to ward level and the dispute between the Applicant and the AL people was private without support or further involvement of the AL as a party.

18.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that reasonable state protection would be available to the Applicant if necessary.

19.  The Director further found that internal relocation would be viable. If the Applicant moved to Chittagong Division or Khulna, the AL people would have great difficulty in locating him. After considering his age and work experience, the Director found that it would not be unduly harsh to expect him to relocate to those areas and lead a normal life.

20.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

21.  After considering the Applicant’s claims including the record of his interview, the DOI Decision, his notice of appeal, the COI and his oral evidence given at the hearing before the Board, the Board concluded that the Applicant was partly credible and partly not credible as a witness.

22.  The Board accepted that the Applicant was approached by AL people who tried to persuade him to switch his support to the AL and that he was assaulted and beaten, or threatened with harm during these encounters but it did not accept that the Applicant faced a real risk of the proscribed risks of harm if he returned to Bangladesh.

23.  The Applicant claimed to have been threatened as early as April 2012 but he did not leave the district of his home village until October 2013. His wife and children continued to live in the house owned by the Applicant in their home village without being harmed. The Board considered that the Appellant did not hold a genuine or grave fear of serious harm. The Board also did not accept the Applicant’s claim that the AL people were still looking for him with an intention to cause him harm after his years of absence from his country.

24.  The Board noted that the AL people had ample opportunity to seriously harm or kill the Applicant in any of the 5 Incidents if they wished to, but they refrained from so doing. The Applicant was also able to leave Bangladesh using his own passport, which suggested that the Bangladeshi government was not adversely interested in him.

25.  The Board however noted that the Applicant did not claim protection in Malaysia, Sri Lanka or Mainland China even though he had the opportunities to do so, and this undermined the credibility of his claim that he faced serious harm in Bangladesh.

26.  The Board accepted that the Applicant did not receive adequate response from the Bangladeshi police but found that he could have escalated his complaint to a higher authority in Bangladesh. State protection was found to be available to him. It also found that with the Applicant’s education and work experience, internal relocation to a city such as Dhaka would be viable.

27.  The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

28.  In a judicial review, the court does not step into the shoes of the decision makers.

29.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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”.

30.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

31.  The Applicant did not advance any grounds for his intended judicial review in the Form 86. In the Supporting Affirmation, the Applicant only produced the Board’s Decision and the hearing bundle for the hearing before the Board as exhibits to the Supporting Affirmation.

32.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

33.  The Applicant attended the court hearing on 10 October 2024 and confirmed that he did not find any errors of law, procedural unfairness or irrationality in the findings or decisions of the Director and the Board.

34.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

35.  The Board was of the view that there was not a real risk that the Applicant would face any of the proscribed forms of harm should he return to Bangladesh. Reasonable state protection was available and internal relocation was viable to the Applicant.

36.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such finding involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review has no realistic prospects of success.

Conclusion

37.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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