MADBER NASIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 907/2019

[2022] HKCFI 1720

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 907 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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 1 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I decide to deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 16 December 2013 and was arrested on the same date.  On 18 December 2013, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Romiz Kha (“Romiz”) and his followers from Awami League (“AL”).

5.  According to the applicant, he became an active member of Bangladesh Nationalist Party (“BNP”) in 2004 and attended its party rallies and events. Due to the applicant’s active participations, he became popular among his district.  Nevertheless, AL was the main party in his locality.  The applicant was involved in fights with AL members and was arrested by the police three times.  In detention, BNP members were assaulted by the police.  In 2012, Romiz started to persuade the applicant to join the AL.  Upon the applicant’s refusal, the verbal threats followed.  The police took no actions against these threats.  While he escaped to Dhaka, his father informed him that Romiz kept looking for him and even attacked his father for his whereabouts.  Out of fear, he fled to Hong Kong for protection.  Details of the applicant’s claim are set out at paragraph 6 of the Notice of Decision dated 8 September 2017 by the Director (the “Director’s Decision”) and paragraphs 8 to 19 of the Board’s Decision described below.      

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

(1)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)  risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(3)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

(4)  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By way of the Director’s Decision, the Director refused the applicant’s claim.  The Director found that the level of risk of harm upon his refoulement was assessed to be low because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[14]; (ii) Romiz and his followers had no intention to kill him [15]; (iii) his behaviors were inconsistent with his claim [16]; (iv) he did not know the detailed background of Romiz and on his own evidence Romiz had no resource to locate him all over Bangladesh [17]-[18]; (v) he was not a target of the AL [19]; (vi) state protection would be available to him [20]-[25] and (vii) internal relocation was also a viable option [26]-[32].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  The Board scheduled an oral hearing on 13 August 2018 for his appeal, during which he was assisted by an interpreter [5].

9.  The Board considered the following material aspects of the applicant’s claim.  It noticed that the applicant had never held any formal position in the BNP [33]; that he was evasive to simple questions [34]; that he was vague and generalized about his involvement with the BNP [35]-[40]; and that his new claim of being a chairman of his locality was suspicious [41].

10.  Having considered the evidence, the Board found that the applicant at most had a minimal role in the BNP and that there was no evidence showing AL’s assistance of Romiz in harming him [44]-[46].  Further, Romiz never physically hurt the applicant and, on his own evidence, Romiz had no intention to kill his family [47].  There was no reasonable basis to assert that the police would not assist him [48]-[49].  In addition, the country of origin information suggested that state protection would be available [51]-[53] and there was no evidence of state involvement [54]-[55].  In any event, internal relocation was a viable option [83]-[86].

11.  For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed his appeal.   

Application for leave to apply for judicial review

12.  The applicant filed Form 86 on 3 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, he enclosed a statement in which he stated:

(1)  Procedural impropriety: failure to properly apply para 2 of the UN committee against Torture General Comment No.2; failure to conduct sufficient inquiry into the relevant country of origin conditions; failure to give reasons for BOR3 risk rejection; failure to re-consider his dangerous situation if he returned to Bangladesh and that his claim is a political matter, not a private matter;

(2)  Error/misdirection in law: failure to take into account the psychological strain and threats to him and there was no evidence to conclude that he would not be at risk of being tortured and/or subjected to BOR3 risk upon refoulement.

DISCUSSION

14.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.  The Court will bear in mind that the Board’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(1).… …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.  The applicant has not raised any valid ground to challenge the Board’s Decision. The Board had set out the reasons for its findings. His grounds in support of his application are, at most, bare allegations or his comments without any evidence to support.

18.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board 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 realistic prospect of success in his intended judicial review.

CONCLUSION

20.  I therefore refuse to grant leave for the applicant to apply for 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