ALAM MOHAMMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1233/2020

[2024] HKCFI 2154

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1233 of 2020

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:

Introduction

1.  This is an application by Mr Alam Mohammed (the “Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (the “Board”) dated 15 May 2020 (the “Board’s Decision”) when the Board affirmed the decision of the Director of Immigration dated 19 December 2018 (the “DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (the “Claim”).

Background of the Applicant

2.  As set out in the DOI Decision and the Board’s Decision, the Applicant is a Bangladeshi.  He was born on 25 January 1985.

3.  From 2004 to 2011, the Applicant worked in Saudi Arabia and Dubai.  From 2013 to 2015, he operated his own department store in his home village.

4.  In around 2000, the Applicant became a member of the Bangladesh National Party (“BNP”).  His elder brother was also a BNP supporter while his father was a supporter of the opposition party, the Awami League (“AL”).

The Claim

5.  In around 2013 to 2014, Mr Hazarul Haque Arzu (“Hazarul”), a member of AL and the Chairman of the Ward (ie the village council) of his area, sent his AL subordinates to the Applicant’s store to demand payment of extortion money. When the Applicant refused their request, the AL members assaulted and insulted the Applicant on various occasions and threatened to kill the Applicant.  The Applicant sustained injuries in those incidents.  He received treatment in hospital for the injuries on one occasion when the doctor cleaned and bandaged his wounds before discharging him.  He took some painkillers by himself on other occasions. 

6.  The AL members also robbed the Applicant’s store and picked up a flight against the Applicant when the Applicant did not give them coconuts for free. The Applicant reported the robbery to the Feni police.  The police took no action.  Instead, the police informed Hazarul of the Applicant’s reporting against him.  The Applicant had not reported other incidents to the police and had not raised any complaint against the Feni police.

7.  One day towards the end of 2014, around 2 to 3 AL members came to the Applicant’s house and made verbal threats to him.  They slapped and punched the Applicant and threatened the Applicant that they would take his life.

8.  The Applicant became frightened and left for Dhaka to save his life. Around April 2015, he set off for China before he came to Hong Kong.  His family members told the Applicant that the AL members were still coming to his place to look for him from time to time.     

9.  The Applicant claimed that he would be harmed or even killed by the AL members if he returned to Bangladesh because he was a member of BNP and he had political disputes with them.

Procedural history

10.  The Applicant departed Bangladesh for China by air on 11 April 2015.

11.  On 14 May 2015, the Applicant sneaked into Hong Kong from the Mainland by boat illegally.  He was arrested by the police for suspected illegal remaining in Hong Kong on the same day.

12.  On 17 May 2015, the Applicant was referred to the Immigration Department for further investigation.  By a written signification of 18 May 2015, the Applicant lodged the Claim. 

13.  The Director of Immigration (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 (the “Ordinance”) (“torture risk”);

(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, Cap. 383 (the “BOR”) (“BOR 2 risk”);

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

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

15.  On 19 June 2020, the Applicant filed the Form 86 herein (the “Form 86”) seeking leave for judicial review of the Board’s Decision and the DOI Decision.  The Applicant named both the Board and the Director as proposed respondents in the Form 86.

16.  The Applicant filed his supporting affirmation on 19 June 2020 (the “Supporting Affirmation”).

17.  On 20 June 2024, the Applicant filed another affirmation applying to withdraw this intended judicial review application (the “Withdrawal Application”).

The DOI Decision

18.  After considering all the relevant circumstances, the Director assessed the level of risk of harm from the members of AL to the Applicant to be low.

19.  The Director had considered the low intensity and frequency of past ill-treatment from Hazarul and/or his AL people; the mode of the attack and the extent of the injuries suffered by the Applicant.  The Director did not accept that the ill-treatment, whether physical or mental, inflicted upon the Applicant by Hazarul and/or his AL people attained a minimum level of severity.

20.  The Director was of the view that the behaviour of Hazarul and/or his AL people showed no real intention to materialize the death threat against the Applicant. 

21.  The Director viewed that the Applicant was at most being targeted by those AL people in the Applicant’s locality.

22.  For the aforesaid reasons, the Director did not accept that the Applicant would face a real and personal risk of being subjected to ill-treatment prohibited by BOR 3 upon his return to Bangladesh.  The Director also found that the Applicant failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2 upon his return to Bangladesh.

23.  The Director considered that the threats, assault and ill-treatment inflicted upon the Applicant by Hazarul and/or his AL people, even if true, arose from a private dispute between the Applicant and Hazarul.  It had nothing to do with “race, religion, nationality, membership of a particular social or political opinion”.  The Director had assessed the risk of the feared ill-treatment to be small and thus did not accept that the Applicant’s fear was well-found.  The Director assessed that the Applicant’s case did not warrant non-refoulement protection on the grounds of persecution risk.

24.  The Director did not accept that there were substantial grounds for believing that the Applicant would be subject to torture (particularly being killed by Hazarul and/or his AL people) upon his return to Bangladesh. 

25.  The Applicant had not adduced anything to substantiate that Hazarul and/or his AL people were acting in an official capacity, or acting on behalf of the state, or acting under the direction or control of the state when inflicting harm upon or threatening the Applicant.  Their purpose of harming the Applicant had nothing to do with the Bangladeshi government’s interest or policy and was not within the definition of “torture” under section 37U(1) of the Ordinance.  The fact that the Applicant did not encounter any problem upon departure from Bangladesh on 11 April 2015 indicated that he was not a target of the Bangladeshi government or authorities.

26.  After considering the relevant country of origin information (“COI”), the Director formed the view that the availability of state protection would further lower or negate the level of risk.  The objective information in the COI showed that the Bangladeshi authorities discharged their duties impartially even when the suspected offenders were members of the police or politicians. The misconduct of the police officers in Feni Police Station, without anything more, should not be taken as official acquiescence.  The Director did not accept that reasonable state protection would not be available to the Applicant.

27.  The Applicant had stayed in Dhaka without encountering any problem before he departed Bangladesh.  The AL people was unable to locate him and cause him further harm in Dhaka.  The Director opined that the Applicant’s problem in Bangladesh was just a localized one.  Bangladesh is the 95^th largest country in the world by size and Dhaka had a population of above 10 million. The Director took the view that it would be very difficult for Hazarul and/or his AL people to locate the Applicant among such a population in city areas. Hence, the Applicant could relocate to Dhaka to avoid the threats from Hazarul and/or his AL people.  Internal relocation is permissible under the laws in Bangladesh.  Being an able-bodied adult with overseas working experience and local working experience, the Director was of the view that it was not unduly harsh for the Applicant to relocate to other areas in Bangladesh to sustain his living and to prevent any perceived risk of feared treatment.

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

The Board’s Decision

29.  The Board analyzed the activities of Hazarul and his AL people related to the incidents.  The Board found that they were unlawful extortion of money and bullying tactics and were criminal activities using AL Chairman’s influence in the village council.  They were not work of government officials acting in an official capacity.

30.  As regards the injuries suffered by the Applicant in the flights and attacks on him, the Board found that they were not serious as could be seen from the treatment described by the Applicant.  There was no evidence to support that Hazarul and his AL people had influence beyond his village or his immediate locality.  There was no evidence that Hazarul’s unlawful acts would be acquiesced by the AL party as a whole or that Hazarul would not be subject to law enforcers who were not under his sphere of influence that was a very small sphere.

31.  The Board came to the finding that the Applicant would be safe if he relocated to a large city such as Dhaka where the population is large and the population density is well beyond that of the Applicant’s village.  It is also sufficiently far away from the Applicant’s home village and beyond the sphere of influence of those village bullies.

32.  The Board had analyzed the administrative structure of local government in Bangladesh from information available from Wikipedia article on Local Government and formed the view that it was highly unlikely that the Chairman of the Applicant’s village council had much influence outside his village. 

33.  The Board was of the view that the Applicant had extensive overseas and working experience.  He is a capable man and would be able to relocate to a city such as Dhaka about 220 km away from his village.  The Applicant had previously stayed in Dhaka safely before he departed for China and there was no evidence to suggest that Hazarul would seek him out if he were in large city like Dhaka.  There was also no evidence that Hazarul and/or his AL people would pursue the Applicant once he was out of the village.

34.  The Board found that internal relocation was a real possibility and option for the Applicant.  Dhaka and Chittagong were real possibilities for internal relocation.    

35.  The Board noted that the Applicant departed from Bangladesh on the strength of his own passport and did not encounter any hindrance passing through the immigration checkpoint.  This showed that the Applicant was not targeted by the government of Bangladesh nor by any higher authority of the AL party.

36.  Having considered all the COI referred to in the DOI Decision, the Board came to an independent assessment that the Bangladeshi authorities did discharge their duties impartially.   

37.  The Board was of the view that the Applicant’s experience related to the police was the situation in his home village which was a very small local community administered by a village council.  There was nothing to show that the Bangladeshi authority as a whole would be unable or unwilling to discharge its duties or would tolerate any unlawful and abusive behaviour committed by an individual as a systemic practice. 

38.  The Board was of the view that there was nothing to suggest that reasonable state protection would not be available to the Applicant if he sought it outside of his village environment.

39.  The evidence did not establish that the actions of the Chairman of the village council and his gang acted as government officials or in an official capacity or they acted at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity.  They merely misused their influence for their personal gain to extort money as bullies.

40.  Having considered the “nature and context of the treatment” received by the Applicant, “the manner and the method of its execution, its duration, its physical or mental effect” and “the sex, age and state of health of the victim”, the Board found that the ill-treatment the Applicant suffered had not attained the “minimum level of severity” for it to fall within the scope of Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). 

41.  The Board further found that the Applicant had failed to show that there were “substantial grounds for believing that he would be in danger of being subjected to torture” having reference to the definition of “torture” under Part VII of the Ordinance and Article 3 of CAT.  The Applicant’s evidence did not show that he suffered “an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on” him for the purposes stated in section 37U(1) of the Ordinance “for any reason based on discrimination of any kind”. 

42.  The Board found that the Applicant had failed to establish his claim of torture risk.  Furthermore, the option of internal relocation was available to the Applicant.

43.  The Board found that BOR 2 was not applicable to the Applicant’s situation as this was not a case related to death sentence and genocide and the evidence did not show that the Applicant would be arbitrarily deprived of his life.  Hence, the Board found that the Applicant had failed to establish his claim for BOR 2 risk.

44.  The Board was of the view that the alleged ill-treatment and injuries claimed to have been suffered or threats received by the Applicant in the incidents did not meet the threshold of “minimum level of severity” referred to in Ubamaka Edward Wilson v Secretary of Security and Another (2012) 15 HKCFAR 743.  The Board found that the Applicant had failed to establish his claim under BOR 3.

45.  The Applicant’s claim was not based on “fear of being persecuted on account of one or more of race, religion, nationality, membership of a particular social group or political opinion”.  The Applicant was bullied for extortion of money by the Chairman of the Ward or village council and his associates who misused their position for unlawful gain.  It was not because of the Applicant’s political opinion.

46.  The Board had also found that the experience of the Applicant was a localized issue.  The life and freedom of the Applicant was not threatened. With internal relocation, the Applicant would be safe from any risk of harm from Hazarul and his gang.  Further, there was no evidence that AL as a party was behind or had acquiesced to the unlawful activities of Hazarul and his gang.  The Board found that the Applicant had failed to establish the persecution risk claimed.

47.  After considering all the evidence adduced by the Applicant and for reasons stated in the Board’s Decision, 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

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

49.  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”.

50.  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 a reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

51.  The Applicant did not advance any grounds for his intended judicial review in the Form 86.  In the Supporting Affirmation, the Applicant only stated that he would like to set aside the DOI Decision as the Director disagreed the danger and threats which he would face in his country should he be deported there.  The Applicant produced the Board’s Decision and the Board’s covering letter as exhibits to the Supporting Affirmation.  In effect, the Applicant seeks to challenge the finding of fact of the Director and/or the Board which is not permissible in a judicial review. 

52.  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 Boards’ 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. 

53.  Having rigorously examined the Board’s Decision, the 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 four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed very high standards of fairness. 

54.  The Board found that the injuries claimed to have been suffered by the Applicant in the incidents were not serious; the alleged ill-treatment suffered by the Applicant did not meet the threshold of “a minimum level of severity”; the Applicant was not targeted by the government authorities of Bangladesh; the bullying, threats, extortion and flights encountered by the Applicant were localized criminal activities for personal gain of Hazarul not acquiesced to by government authorities or the AL party; reasonable state protection is available; and internal relocation is a real possibility for the Applicant in Bangladesh.  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 on a judicial review will not interfere save when such findings involved errors of law, procedural unfairness and 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.  

The Withdrawal Application

55.  The Applicant subsequently filed the Withdrawal Application on 20 June 2024.

56.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of his own volition.

57.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

58.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

59.  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 his 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