SHAFIQUL ISLAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1856/2019

[2024] HKCFI 2953

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1856 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;            or
	consideration of the 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 Shafiqul Islam (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 11 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 29 August 2018 (“2018 DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  As set out in the 2018 DOI Decision and the Board’s Decision, the Applicant is a Bangladeshi. He was born on 11 June 1976 in District Brahmanbaria, Bangladesh. He received 10 years of education and had 1 year of work experience as a shopkeeper.

3.  He first came to Hong Kong in June 2003 and was repatriated to Bangladesh in October 2005. He came to Hong Kong again in March 2007.

The Claim

4.  The Applicant relied on the following facts for his claim. He claimed to be an ordinary member of the Bangladesh Nationalist Party (“BNP”) since he was 22 years old. He took part in meetings and processions organized by the BNP.

5.  In around 2000, 10 to 15 leaders of the rival political party, the Awami League (“AL”), asked the Applicant to join the AL. The Applicant politely refused their requests every time. In 2002, the Applicant took up a job to work as a shopkeeper. In around late 2002, 10 to 15 AL people (some of them were armed with knives) went to the Applicant’s shop. The Applicant fled before anything bad happened (“1^st Incident”).

6.  The Applicant went to Motijheel, Dhaka to hide. He learnt that the shop was vandalized by the AL people but no one was hurt. He tried to make a complaint to the Motijheel Police Station but the police declined to register his report stating that he needed to file a case in the area where the incident happened. The Applicant then went to the police station near his home to make a report but the police told him that they would not accept any case against the AL.

7.  The Applicant stayed in Motijheel for some time and his family told him that the AL people had gone to his home several times but none of his family was harmed. The Applicant fled to India on 1 January 2003 but returned to Bangladesh on the same day because he felt that India was not safe. He went to Hong Kong on 3 June 2003 and was repatriated to Bangladesh on 26 October 2005 for overstaying.

8.  The Applicant went back to his home village after being repatriated to Bangladesh. One day, when he was leaving the local BNP office, about 10 to 15 AL members headed towards him. The Applicant managed to run away from them and returned home (“2^nd Incident”). The Applicant tried to make a report at the local police station but the police refused to accept his case.

9.  The Applicant then went to Motijheel, Dhaka to hide. Later, his family told him over the phone that the AL people had learnt that he was hiding in Dhaka and was looking for him. He therefore came to Hong Kong again in 2007.

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

Procedural history

11.  The Applicant had previously entered Hong Kong as a visitor in 2003. He was arrested on 2 August 2005 for overstaying and was repatriated to Bangladesh on 26 October 2005. He re-entered Hong Kong again on 24 March 2007 as a visitor, this time using a false identity of Miah Jabed.

12.  The Applicant was arrested on 19 April 2009 for having overstayed in Hong Kong. He lodged a claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 15 June 2009 (“CAT Claim”).

13.  The Applicant was convicted of making a false representation to an Immigration Assistant and sentenced to eight months of imprisonment on 20 May 2009. On 5 November 2010, the Applicant was convicted of taking up employment while being a person in respect of whom a removal order was in force and sentenced to 13 months of imprisonment.

14.  The CAT Claim was dismissed by the Director’s decision dated 15 November 2011 (“2011 DOI Decision”). The Applicant did not appeal against the 2011 DOI Decision. Thus the CAT Claim was concluded.

15.  By a written representation of 25 June 2013, the Applicant lodged the Claim. The Director had considered the Claim on the remaining applicable grounds (other than the CAT Claim) under the United Screening Mechanism (“USM”), namely:

(a)  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”);

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

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

16.  By the 2018 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 2018 DOI Decision. The Board rejected and dismissed the Appeal.

17.  On 3 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 2018 DOI Decision

18.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that the AL people intended to harm the Applicant. This was because the Applicant was able to run away from the AL people in both Incidents and he had never been harmed by the AL people in the past. The verbal threats made by the AL people to the Applicant did not amount to ill-treatment attaining a minimum level of severity. The low intensity and low frequency of ill-treatment from the AL people in the past was indicative of low future risk of serious harm to the Applicant upon his returning to Bangladesh.

19.  The Director also found that the Applicant’s dispute with the AL people was not politically motivated and that such dispute was “purely private and personal”, though under the name of a political party. (§20 of the 2018 DOI Decision) The Applicant had left Bangladesh in 2003 and returned in 2005 without problem. This showed that he was not a target of the Bangladeshi government. The Director did not accept that the AL party as a whole or the Bangladeshi government were adversely interested in the Applicant.

20.  The Applicant did not seek protection while in Hong Kong in 2003 and only lodged the CAT Claim in 2009 after he was arrested. His belated action did not suggest that he was in contemplation that he was subject to an imminent threat and required immediate protection.

21.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that there might be some inefficiency or ineffectiveness problems within the Bangladeshi police but there were objective indications in the COI showing that the Bangladeshi government took steps to improve the situation. The Director found that the Bangladeshi government was able and willing to protect the rights of its citizens. The availability of state protection further lowered or negated the level of perceived risk.

22.  The Director further found that internal relocation would be viable. If the Applicant moved to Dhaka or Chittagong, 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.

23.  For the reasons set out in the 2018 DOI Decision, the Director rejected the Claim.

The Board’s Decision

24.  After considering the Applicant’s claims including his written evidence, the record of his interview, his notice of appeal and his oral evidence given at the hearing before the Board, the Board formed the view that the Applicant was not a witness of truth.

25.  The Board set out evidence given by the Applicant at different stages of the non-refoulement proceedings in §§13-26 and 37-63 of the Board’s Decision. The Board analyzed the Applicant’s evidence in §§66-81 of the Board’s Decision. The Board noted that in the course of the appeal proceedings, the Applicant added a great deal of details to his evidence about his alleged involvement in the BNP but omitted detailed evidence from his earlier application. The Board found that this undermined his credibility (§73 of the Board’s Decision).

26.  The Board also found his claim to be inherently implausible. This is because the Applicant only claimed to be an ordinary member of the BNP and if that were the case, he would not be of much political value to the AL and the AL people would have had no reason to be interested in him (§74 of the Board’s Decision).

27.  The Board further found that the Applicant was able to use his own passport to leave and re-enter Bangladesh in 2003 and 2005 respectively. This suggested that he was not of any adverse interest to the Bangladeshi authorities. The Board did not accept that the AL people would still be interested in harming him some 18 years after they first became interested in him in the year 2000 (§79 of the Board’s Decision).

28.  The Board further noted that the Applicant had “a history of providing false evidence to the Hong Kong immigration authorities”, which further undermined his credibility (§80 of the Board’s Decision).

29.  The Board held that the Applicant falsified his claim for protection for the purpose of prolonging his stay in Hong Kong (§81 of the Board’s Decision). The Board rejected the Applicant’s evidence in its entirety.

30.  The Board did not accept that there was a real risk, a real chance, or a reasonable likelihood that the Applicant would be subjected to the feared harm upon his return to Bangladesh. The Board also did not find that the Applicant faced a genuine and substantial risk of being subjected to ill-treatment covered by the BOR 3 risk or that his life would be at risk if he returned to Bangladesh.

31.  As the Board held that the Applicant was not at risk from the AL people, who were the only source of risk identified by the Applicant, it found that the Applicant would not face any risk upon his return to Bangladesh.

32.  The Board found that the Applicant had failed to establish his case on all remaining applicable grounds (other than the CAT Claim) under the USM. The Board affirmed the 2018 DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

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

34.  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”.

35.  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

36.  In the Form 86, the Applicant raised the following complaints in support of his intended judicial review:

(1)  the Board had unlawfully fettered his discretion by refusing the Appeal;

(2)  the Board acted in a procedurally unfair manner in dealing with the Appeal;

(3)  the Board’s decision to refuse the Appeal was unreasonable, irrational or was a result of procedural errors or unfairness;

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  he was not given an opportunity to put forward his submissions in an oral hearing; and

(6)  the Board relied on COI which were hearsay, outdated and not officially recognized.

37.  The Applicant attended the court hearing on 26 September 2024 (“Court Hearing”). I asked the Applicant to specify the fettered discretion, the procedural unfairness, procedural errors and the failed duty of care being matters referred to in the Form 86 as his grounds for this intended judicial review. The Applicant was unable to specify any. He only said that he had been staying in Hong Kong for a long time. He did not know what had happened back in his home country and he wanted to continue to stay here.

38.  Items (1) to (4) of the Applicant’s complaints were bare assertions unsupported by evidence and without particulars or specifics. They are not reasonably arguable.

39.  In the Supporting Affirmation, the Applicant further elaborated items (5) and (6) of his complaints.

40.  The Applicant complained that he did not have the opportunity to make submissions to the Board at an oral hearing. This is plainly wrong. An oral hearing before the Board took place on 3 April 2019 (“Board Hearing”) when the Applicant attended and made submissions to the Board. (See §§27-63 of the Board’s Decision) The Applicant confirmed at the Court Hearing that he did attend the Board Hearing and make oral submissions to the Board. This complaint of the Applicant is wholly devoid of merits.

41.  The COI considered by the Director had been listed as appendix to the 2018 DOI Decision and included in the hearing bundle placed before the Board. The Board had consider the COI in the hearing bundle as well as COI referred to in §65 of the Board’s Decision.

42.  COI is by nature hearsay evidence. The COI considered by the Director and the Board came from official web sites of government departments, international organizations, and media. I do not see how they were not officially recognized. The COI included report issued on 20 April 2018 and document updated on 1 May 2018 when the hearing before the Board took place on 3 April 2019. The COI were not “outdate”. The Applicant confirmed at the Court Hearing that he did not submit any up-dated COI to the Board at the Board Hearing. This ground of the Applicant is not reasonably arguable.

43.  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 2018 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.

44.  Having rigorously examined the Board’s Decision, the 2018 DOI Decision and the Supporting Affirmation with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the remaining applicable grounds (other than the CAT Claim) under the USM; the burden of proof and standard of proof; correctly identified the issues and observed very high standards of fairness.

45.  The Board found that the Applicant had failed to establish any of the claims made by him in the Claim. The Board did not accept that he was an active member of the BNP who in turn attracted the attention of AL. The Board also did not accept that the AL specifically targeted the Applicant and would have the desire and/or ability to pursue him throughout Bangladesh if he returned.

46.  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 remaining applicable grounds (other than the CAT Claim) under the USM. These are findings of fact which are exclusively within the province of the Board, which the court on 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 Board’s Decision is without fault. The proposed judicial review has no realistic prospects of success.

Conclusion

47.  In the premise and having considered the Board’s Decision and the 2018 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