|
HCAL 1448/2020
[2023] HKCFI 2970
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1448 of 2020
|
BETWEEN
|
| |
Sumon Abu Saiyed |
Applicant |
| |
and |
|
|
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
| |
and |
|
| |
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 10 July 2020 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 19 May 2020 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 15 May 2018 (the “Notice”).
2. The Applicant is a Bangladeshi national. He entered Hong Kong illegally on 12 May 2016 and was arrested on the same day. On 17 May 2016, he raised 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 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.
3. The Applicant requested an oral hearing. An oral hearing was scheduled for him. Notice of hearing on 20 October 2023 was issued to him by post on 6 October 2023. The notice has not been returned through the post. There is nothing to suggest he had not received the notice. However, he did not appear at the hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered his application may be justly determined on paper without an oral hearing.
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 claims he would be harmed by members of a rival and ruling political party, the Awami League (“AL”), upon his refoulement due to his support for the Jamaat-e-Islami political party (“JEIP”).
5. The Applicant was born in Padua Village, Joyar Kasar, Feni Sadar, Feni, Bangladesh. He is nearly 35 years of age. He had received 12 years of education and had worked in his father's garment shop and as a plumber in Qatar. He had been a supporter of JEIP since 2008 and joined the party as an ordinary member in early 2013 after returning from Qatar. He did not hold any position in the party. He participated in meetings and rallies and promoted the party among the villagers. He convinced many villagers in his home village to leave AL and join JEIP which attracted the attention of AL. Hence, he became a target of AL.
6. Sometime in 2014, the Applicant had been threatened by AL, but nothing happened until December 2014. On that occasion, about ten men forced into his home, dragged him out to the field and assaulted him. The assailants told him to stop working for JEIP. One of them cut his right foot near a vein and he fell unconscious. His parents took him to hospital. He was hospitalised for three days. His parents attempted to file a police report but the local police refused to accept their complaint. After his recovery, he continued working for JEIP.
7. In early 2015, the Applicant was assaulted a second time in the local market area by four or five AL people. They pulled out his fingernails with pliers and beat him with hockey sticks. He was hospitalised for a week and had to stay at home for two months. He is still suffering lower back pain. He did not file any police report because of the previous experience.
8. He continued supporting JEIP until mid-2015. Upon learning about possible threats from AL members, he moved to a friend’s home in Phoolgazi, Feni. About five days later, he noticed some AL men came to his friend’s home. Then, he ran away and returned to his home.
9. In late 2015 while he was in his father’s shop, eight or nine AL people came. They threatened and assaulted him. Then an AL leader arrived. They took him to a room in the AL office nearby where he was beaten with wooden sticks and hockey sticks. He was then tied to a fixed bench. An electric wire was applied to his hand until his skin burnt. He fell unconscious. He woke up in hospital where he was hospitalised for about 12 days. Upon his discharge from hospital, he moved to his grandfather’s home in Chittagong, where he lived discreetly until he left for China in March 2016. He did not believe the Bangladeshi police would protect him. He did not believe internal relocation possible because AL members were able to locate him in the past even after he had moved to his friend’s place or to his grandfather’s home.
The finding of the Board
10. The Board found on the basis of country of origin information (“COI”) that at the material time the political culture in Bangladesh was characterised by violence and confrontation; the political situation was extremely violent; JEIP was the largest Islamist party with strongholds in Rajshahi and Chittagong; AL government severely restricted the activities of JEIP; opposition activists faced criminal charges and harassment by law enforcement; senior JEIP leaders faced a high risk of arrest and legal sanction; active JEIP members and demonstrators faced high risk of arrest, but ordinary members who did not engage in political activities faced a lower risk of arrest. The Board also accepted that the police in Bangladesh is inefficient, corrupt, can be reluctant to investigate persons affiliated with the ruling political party; and can act with impunity. It found state protection is unlikely to be accessible.
11. The Board considered the Applicant had given a relatively consistent account of the circumstances in which he was harmed by members of AL because of his membership of JEIP; but had difficulties in accepting certain aspects of his account. It accepted that he had suffered injuries as he asserted but not the circumstances as to how they were sustained. It noted some inconsistencies in his evidence. He told the immigration officer that he was bedridden for two months after the second attack in 2015, but told the Board that he stayed at home for only a few days. He also made some first time assertions before the Board, such as that he had been located by the AL people while staying in his friend’s place in mid-2015. The Board considered that if his abductors intended to torture him, it was unlikely that they would have only applied the wire to his right hand. It also found his account that he managed to escape after the third attack because his abductors threw him outside AL’s office thinking he was dead implausible.
12. Of greater concern to the Board was that while claiming he was very actively involved with JEIP and was attacked on three separate occasions because of his work for JEIP, he lacked even the very basic knowledge about the JEIP, its philosophy, policies, platforms, political achievement, and the significant political activities surrounding the anniversary of the controversial 2014 election when government randomly arrested and supressed many opposition leaders and activities and there were many instances of violence, rallies, strikes and blockades for many months. His lack of such knowledge cast doubt on his claim that he was actively involved with JEIP. The Board could not accept he had any significant involvement with JEIP which led to his being personally attacked on three occasions and that the scars he displayed were sustained at the hands of AL members under the circumstances as he alleged. The Board found the Applicant exaggerated his political involvement. It found that given his low level of involvement with JEIP, the risk of harm from AL, should he return to Bangladesh, would be low and unlikely to materialise.
13. On the basis of the COI, the Board accepted that threats due to political differences were typically localised and lower-ranking party officials will likely remain unrecognised outside their localities. Hence, the Board found, given his age, education, work history and family support, he may safely relocate to Dhaka or another large city in Bangladesh and it would not be unduly harsh to expect him to do so.
14. 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 four applicable grounds under the USM and dismissed his appeal against the Director’s Notice.
Legal principles applicable to judicial review
15. 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
16. The thrust of the Applicant’s grounds for judicial review as advanced in his supporting affirmation is that he disagreed with the Decision of the Board. He alleged that the Board erred in its Decision. He disagreed with the Board’s finding in Paragraphs 48 to 55 of its Decision that he did not have enough information about the JEIP. He reiterated that he was targeted by AL members and cannot access police protection. In essence, he is challenging the finding of fact by the Board that the risk of harm he would face upon his return to Bangladeshi would be low and that he could avoid the risk by internal relocation. 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
17. The Board accepted most of the Applicant’s evidence but found he had exaggerated his involvement with JEIP and the consequent attacks upon him by AL members. It did not accept he had any significant involvement which led to his being personally attacked on three occasions resulting in the scars he displayed to the Board. The Board gave detailed reasons for its finding. In essence, it found it incredible that with his lack of knowledge about JEIP, its philosophy, policies, platforms, political achievement, etc he could be in a position to actively promote the party and convince the villagers to leave AL to join JEIP. It found his lack of knowledge about the significant contemporaneous political events, such as rallies, demonstrations, random arrests and harassment, inconsistent with his claimed high-level involvement with JEIP. These significant political events, are events which anyone actively involved with the party and promoting the party as he alleged he was is expected to be aware of. Hence, the Board found his lack of knowledge about the JEIP and these events cast doubt on his evidence about his active involvement in JEIP which provoked harassment from his AL opponents. As mentioned above, finding of fact and finding of credibility of a witness are matters solely within the realm of the Board which this Court in a judicial review may not intervene, save for errors of law, procedural unfairness or irrationality.
18. 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 Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. There is no merit in the Applicant’s grounds of application. His proposed judicial review has no realistic prospect of success. Accordingly, his application for leave to apply for judicial review is refused.
Dated 16th day of November 2023.
| |
( 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 his solicitors must:
|
|
|
|
|
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)).
|
|
Sent to the Applicant
on 16/11/2023
Sumon Abu Saiyed
Applicant’s ref. no:
Nil. |
|
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 16/11/2023
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11690/18/5/275/B1261
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1516/18 (Formerly RBCZ 12024/16)
Department of Justice,
Senior Assistant Law Office
(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 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)]
|