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HCAL 777/2021
[2024] HKCFI 2990
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 777 of 2021
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BETWEEN
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Shoman Abu Zafor |
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 |
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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 be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 27 May 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 25 March 2021 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 11 December 2018 (the “Notice”) refusing his application for non-refoulement protection.
Background
2. The Applicant is a Bangladeshi national. He sneaked into Hong Kong from the Mainland on 5 February 2017. He was arrested by the police on 1 March 2017 and was referred to the Immigration Department on 2 March 2017. On 22 March 2017, he made a non-refoulement claim. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was rejected by the Director’s Notice. His appeal against that 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
3. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by the Applicant with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, the Applicant claims that if he returned to Bangladesh, he will be harmed or killed by members of the Awami League (“AL”) because he is the general secretary of the No 4 Kharara Union Council of Jamaat-e-Islami (“Jamaat”).
4. The Applicant, now aged 38, was born and raised in Brahmanbaria, Bangladesh. He has a wife and three children who are all living in Bangladesh. He had 9 years of formal education and about 11 years’ experience running his own retail business in construction materials.
5. He joined the Jamaat in 2003 and became the general secretary of No 4 Kharera Union Council in 2014. On 29 January 2015, the police and the AL raided a rally organized by the Jammat, in which the Applicant participated. He was injured and arrested by the police.
6. He was detained at the Kasba police station where he was ill-treated by police officers for refusing to admit to possession of arms and later detained in the Brahmanbaria District Prison where he received medical treatment. He was released on bail on 23 February 2015. On the same day, he went to Kasba police station to complain about the AL people and the two police officers who ill-treated him, but the police did not register his complaint.
7. A few days later, whilst on his way home, he was approached by a group of AL people. He ran back home as soon as he recognised them.
8. In the next morning, the same group of AL people came to his home whilst he was out at work. They vandalized his home and told his wife that they would kill him if they found him. For the next 20 to 25 days, the Applicant stayed in his shop during the day and at his relative’s place for the night.
9. One day in March 2015, his uncle told him that the police arrived at his shop for the purpose of arresting him. He was terrified because previously two Jamaat members had been arrested by the police and handed over to the Rapid Action Battalion (“RAB’). Subsequently, the RAB announced that they were killed in a cross fire. The Applicant thought the cross fire was just a cover up and the two Jamaat members were in fact murdered. Out of fear, he did not return to his shop. He stayed at his relatives’ and friend’s home for about eight months.
10. He went to China on 4 March 2016 but returned to Bangladesh on 14 March 2016 due to language barrier. He joined his wife and children in Chandrapur. Their stay there was uneventful and he did not encounter any more people from the AL. However, feeling he would be located by the AL people, he flew to Guangzhou and then sneaked into Hong Kong on 5 February 2017.
11. Since arrival Hong Kong, his wife told him that during his absence, the AL people visited their home many times to ask for his whereabouts. They threatened his wife and children that they would burn down their house if he did not return in time. When they found out verbal threats did not work, they slapped his wife and children. Out of fear, his wife and children moved to her sister’s home.
12. The Applicant does not believe the Bangladeshi authorities and police would help him, as they are corrupt and sided with the AL which is the ruling political party. He does not believe internal relocation would be viable because the AL members could locate him throughout the country through their powerful network.
The finding of the Board
13. The Board found the Applicant’s case incredible and aspects of his account were exaggerated or inconsistent with information he gave in other settings. Some of his evidence were inconsistent with authoritative and credible country of origin information (“COI”) and some even defied logic.
14. For example, while claiming to be a general secretary of the Jamaat and that he had the original document, he could only produce an email image of his appointment but not the original. As a general secretary, he was unable to answer some of the basic questions about the Jamaat, such as why it changed its name in 2008, when it changed its logo thereafter and the four points program of the Jamaat. The Board also found his account of his arrest and detention by the police defied logic; his belief of the murder of his two Jamaat colleagues by the RAB was based on hearsay from unknown source; and his account about the police attempt to arrest him in March 2015 was hearsay which was uncorroborated in any way. The Board also found it defied logic that if there were a genuine warrant for his arrest he could depart Bangladesh twice using his own identity through lawful channels.
15. The Board found the Applicant had never been harmed by the AL in any way. He was merely arrested by the police and the ill-treatment he received from the police during his detention was not serious as he could resume work and travel as soon as he was released. The ill-treatment could not have been the reason why he eventually left Bangladesh. The Board also rejected his belief that his arrest by the police and subsequent ill-treatment were inflicted for and on behalf of the AL or pursuant to a conspiracy between the police and the AL.
16. The Board considered his involvement in the Jamaat was relatively minor. His lack of knowledge about the ethos of the Jamaat was consistent with the theory that he was not an important office bearer of the Jamaat.
17. On the basis the COI, the Board found that although there is evidence of police ineffectiveness in Bangladesh, there are objective indications that the government has taken practical steps to maintain public order and safety in its jurisdiction and to improve the effectiveness and monitor police conduct. On balance. it was satisfied that the state was both willing and capable of offering effective protection to its citizens and that state protection would be available to the Applicant. The Board found that as an able-bodied person, the Applicant could safely relocate to Dhaka to avoid the perceived risks from the AL members, which were localised within his home area. Hence, it was also satisfied internal relocation a possible option to avoid or reduce the risk of harm.
18. The Applicant had not participated in the operation of Jamaat since the various incidents in 2015. He had spent some twenty months in Bangladesh without being pursued by any authorities or members from the AL. Taking all the above finding into account together with the passage of time, the Board found that there could not possibly be any substantial grounds for finding that the Applicant would face a real risk of ill-treatment if refouled to Bangladesh. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support his claims for protection under any of the applicable grounds being considered. Hence, it dismissed his appeal against the Director’s Notice.
Legal principles applicable to judicial review
19. 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[5].
Grounds for judicial review
20. The Applicant did not advance any grounds for judicial review in the Form 86 or in his supporting affirmation. At the hearing, he confirmed that he had no complaint about errors of law or irrationality in the Decision. However, he advanced the following argument in support of his ground for review on the basis of procedural unfairness. He claimed that according to an article in the South China Morning Post dated 25 September 2024, the Bangladesh government announced that there will be no general election in the coming 18 months. He submitted that he still had a political case pending in Bangladesh. He was unable to obtain support from the Jamaat because the party was disbanded by the government and the party leaders also disowned him for he had betrayed the party by fleeing from the home country. He said he was told by his wife that the police were still looking for him.
21. Though he argued that these are new facts which occurred after he had left Bangladesh, these new facts are premised on his account that he fled Bangladesh because of his substantial participation in the Jamaat which attracted adverse interest from the AL. But his account had been rejected by the Board as incredible. Thus, true or false, these new facts had no impact on the Board’s Decision because on the Board’s finding he had no participation in the Jamaat which attracted sufficient adverse interest from the AL. The Applicant’s submission could not be a valid ground of application.
Overall scrutiny
22. The Applicant has not advanced any valid grounds for judicial review. In the absence of specific or valid grounds of application, 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.
23. 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 relating to the four applicable grounds 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 found the Applicant an incredible and exaggerating witness. It accepted most of his evidence but not the crucial issue that he had substantial involvement in the Jamaat as to attract attention from the AL members. These are finding facts solely within the realm of the Board. The Board analysed the evidence properly, tested it against common sense and inherent probability and gave reasons for its finding. It was on that basis 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 four applicable grounds under the USM. This is a mixed finding of fact and of law. 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.
Conclusion
24. For the above reasons, the application for leave to apply for judicial review is refused.
Dated the 29th day of October 2024
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(Seline Sze)
for Registrar, High Court
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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 29/10/2024
Shoman Abu Zafor
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 29/10/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14993/18/12/350/B1811
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 4394/10 (Formerly RBCL 10854/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
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 23 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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