MADBAR MD RUBEL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2665/2019

[2025] HKCFI 2349

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2665 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 oral submissions by the Applicant in open court;

1.   Leave to amend the Form 86 be granted; and

2.   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 12 September 2019 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 5 September 2019 (the “Decision”) and “a decision made on an unknown date but notice on of 31 December 2018”.  He annexed a copy of the Board’s Decision and a copy of 125-page hearing bundle in his supporting affirmation. 

2.  By that Decision, the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 21 December 2018 (the “Notice”), refusing his application for non-refoulement protection.  At the hearing, the Applicant confirmed that it is his intention to seek judicial review of the Board’s Decision which dismissed his appeal against the Director’s decision in the Notice.  Hence, the “decision of an unknown date” mentioned in the Form 86 is referable to the decision in the Notice.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures.  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. In the circumstances, it would be futile to amend the Form 86 to properly identify the “decision of an unknown date” which is not susceptible to judicial review.  In any event, the Form 86 would achieve the purpose intended to be achieved by the Applicant, if his application is successful.  The Court considered his leave application as regards the Decision only. 

Background

3.  The Applicant is a Bangladeshi national.  He entered Hong Kong illegally on 5 January 2016.  He was arrested by the police for being a suspected illegal immigrant on the same day.  He was referred to the Immigration Department on 7 January 2016 and made a non-refoulement claim on 9 January 2016. In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk^[2]; BOR 3 Risk^[3]; Persecution Risk^[4]; and BOR 2 Risk^[5]. His application was rejected by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision.  He now applies for leave to apply for judicial review of that Decision.

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 (the “NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claims, if refouled to Bangladesh, he will be harmed or killed by the people of the Awami League (“AL”) because he had not replied if he agreed to give them extortion money. 

5.  The Applicant is now aged 46.  He became a supporter of the Bangladesh Nationalist Party (“BNP”) since 2001 when the BNP was the ruling party.  He became a member of the BNP and was appointed as the assistant general secretary at Shariatpur district level in January 2014.  He did not encounter problems until AL came into power in 2009.  The AL people attended his shop to demand extort money from him.  They threatened that he had to pay them three million Taka, if he wanted to continue his business.  The Applicant stalled for time by telling them that he would let them know later.  A group of eight to nine AL people kept visiting his shop but he encountered them only once, as he was absent from his shop on the other occasions.  He never paid any extortion money to the AL people.  He tried to seek help from his BNP leader (“Sarder”), but in vain.  In 2014, Sarder assisted him to file a complaint to the Palong Police Station, but the police refused to assist people from the opposition party (the “extortion incident”).

6.  One week later, he went to Dhaka for business.  Whilst there, he was informed by his worker that a group of AL people vandalised his shop because they came to know that Sarder had requested police assistance.  Shortly after that, his mother told him that a group of AL people had gone to his home and complained that he had left for Dhaka without replying them whether he agreed to pay the extortion money, but they did not hurt his family members.  Following his mother’s advice, he stayed at Zakir’s place in Dhaka and worked at Zakir’s shop since August 2014.

7.  In July 2015, whilst going to a market in Dhaka with his cousin, he was approached by three men.  He ignored them.  One of them hit his right shoulder and right leg with a hard object.  He managed to escape.  He obtained treatment from a doctor in a pharmacy.  

8.  One day in August 2015, Zakir told him that some AL people had come to the shop for him.  Zakir advised him not to return to the shop.  On Zakir’s advice, he took a bus to Kolkata, India on 22 August 2015. 

9.  On 25 August 2015, whilst in a restaurant in Kolkata, he met a man who claimed to be from his home area in Bangladesh.  That man was curious why he was in India.  He was worried that man might be from the AL.  He called Zakir to tell him about his concern and returned to Dhaka on the same day.  Soon after his return, Zakir arranged his trip to China.  He departed for Guangzhou by air on 1 January 2016.  

10.  In early November 2018, he contacted Sarder who advised him to stay away from Bangladesh for his safety.  He also learnt from his younger brother and friend that the AL people continued seeking to harm or even kill him, if he returned to Bangladesh. 

11.  He does not believe that the Bangladeshi authorities and police could protect him because they always give false hope to the public and they are not reliable.  He does not believe internal relocation would be viable, as the AL people can locate him through their powerful network throughout the country.

The finding of the Board

12.  The Applicant testified before the Board.  The Board found multiple significant inconsistencies and deficiencies in his testimony before the Board and his earlier evidence in the NCF relating to central and crucial aspects of his claims which raised serious doubts as to the credibility of his claim.  The Board concluded that he is not a witness of truth.  Hereunder are some examples of the Board’s concerns.

13.  He told the Board that he liked Zia Rahman a lot and he joined the BNP because of Zia Rahman’s influence, but he could not name the year when Zia Rahman became the first leader of the BNP correctly.  He said Zia Rahman was the leader of the BNP in 1975 and that the BNP was established in the same year.  However, the country of origin information (“COI”) shows that the BNP was not formed until 1978.    

14.  He also told the Board that he was a supporter of the BNP since 2001 and he formally joined the BNP as a member in 2014 and was appointed as an assistant general secretary at the same time because his leader saw he was doing good work.  The Board found his explanation incredible because on his own evidence he was not formally involved in the party until 2014 and his description of his role and responsibilities in 2001 and 2014 appeared to the Board to be identical.  The Board considered it implausible that he would have been appointed to the position of assistant general secretary at the same time as he formally joined the BNP in 2014. 

15.  The Board found his account of the formalities in becoming a member of the BNP doubtful.  He said all he had to do was to write down his name and date of birth and sign a form.  He did not have to do anything else or pay a fee or subscription.  However, the COI from authoritative and credible source indicates that he missed out two important steps, ie meeting with the BNP leader of the local chapter and paying a membership fee of 5 Taka.  The Board considered that he would not have missed these important steps, if he were speaking from his true experience.

16.  Most significantly, the Applicant could not describe the flag of the BNP accurately.  The Board considered that as a person who claimed to hold an official position in the BNP, he could not have failed this. 

17.  The Board also had serious concerns about his account as to how his problem with the AL started.  In his NCF, he said he had no problem with the AL until it became the ruling party in 2009 and since then the AL people demanded extortion money from him, he stalled for time by telling them that he would let them know later, hence they came many times and he only happened to meet them once.  Eventually, after five years, they vandalised his shop in 2014.  In his testimony, he said the AL people came in 2014 and again one week after having made their demand and on finding he was not at the shop, they vandalised and looted his shop.  The Board considered a discrepancy of several years significant.  When confronted, he explained that he had recognised the mistake in the NCF and therefore raised it accordingly.  The Board did not accept his explanation, as his NCF had been interpreted to him before he confirmed it was all true and correct.  The Board thought he would have amended it before he signed if there was really a mistake.  Apart from the discrepancy in timing, the Board found it far-fetched that the AL people would demand three million Taka as protection money from him and do nothing about enforcing payment other than repeatedly visiting him and asking for payment until some five years later as he said in his NCF.  It beggared belief that the AL people would wait so patiently for five years for him to make a decision whether to pay. 

18.  The Applicant claimed he was targeted by the AL people. At the beginning, he told the Board that the AL people started following him in 2011 or 2012 but did not say anything.  Later, he changed his evidence and said that they asked him some questions.  When confronted, he said that after following him ten times, they had certainly said something to him.  He asserted that this situation had gone on for more than a year.  His allegation that he had been followed by the AL people for a relatively lengthy period of time was a first time allegation raised before the Board which the Board considered was concocted in an effort to bolster his case.  The Board found it implausible that the AL people would just follow him for a long time and do nothing else than asking him some casual questions. 

19.  The Board did not accept he was a BNP member, or an assistant general secretary of the party, or an active supporter or that he was affiliated with the party in any way or engaged in any of its activities in support of the BNP.  In light of these finding, the Board had difficulty accepting that he would have been of such continuing interest to AL.  It did not accept his evidence about the extortion.  It follows that the Board did not accept that he stayed with Zakir in Dhaka to avoid the AL people, that he was attacked by three men on the way to the market in Dhaka, and that he fled to India to see if he could remain there safely.  As the Board did not accept the fundamental basis of the Applicant’s claim that he would face any form of harm upon his return to his home country, it considered it unnecessary to proceed to the question of internal relocation and state protection. 

20.  In view of these concerns, the Board did not accept that there is a foreseeable, real and personal risk that the Applicant will be subjected to harm from AL people upon his return to Bangladesh.  It found that there was no reliable evidence to show that the ill-treatment, if any, was inflicted by, or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity as to constitute ‘torture’ within the meaning of section 37U(1) of the Immigration Ordinance. For the same reason, the Board did not accept he had been subjected to cruel, inhuman, degrading treatment or punishment.  It also found there was no evidence to suggest that he would face any risk of persecution and if such risk existed, it was not on account of a reason protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol.  Applying the law applicable to non-refoulement protection to these facts, 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.  Hence, it dismissed his appeal against the decision of the Director in his Notice.

Legal principles applicable to judicial review

21.  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[6].

Grounds for judicial review

22.  The Applicant did not advance any grounds for judicial review in his Form 86 or supporting affirmation.  In the absence of specific grounds of application, the Court in an application for judicial review 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.

Overall scrutiny

23.  Having rigorously examined the Director’s Notice, the Board’s Decision, the Applicant’s grounds of application 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 and quoted relevant precedents in support of its decision.  The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice.  It correctly identified the factual and legal issues involved in the claim.  The Applicant’s claim is founded on his fear of harm arising from his being a person of adverse interest to the AL and for refusing to meet the AL people’ demand for extortion money.  The Decision of the Board was based on its finding of the Applicant’s credibility and assessment of his risk of harm.  The Board had carefully weighed the evidence, tested it against common sense and inherent probability.  It found him incredible.  It found he had failed to prove, even to the low standard of proof required, that he is a person of adverse interest to the AL and the extortion which formed the centerpiece of his claim.  As the Applicant bears the burden of proving his claim, such a finding is fatal.  The Board did not stop there. It also assessed his claim on the basis of the case as he asserted.  Even on the basis of his evidence, the Board found he is not entitled to non-refoulement protection under any of the four applicable grounds under the USM.  These are mixed finding of law and of fact.  Insofar as they are finding of the law, the Board is absolutely correct.  Insofar as they are finding of fact, they are within the realm of the Board, which the court in an application for judicial review will not interfere, save for errors of law, procedural unfairness or irrationality in the Decision.  The Court could detect no errors of law or procedural unfairness in the Decision.  The Board observed a very high standard of fairness.  Its Decision does satisfy the enhanced Wednesbury test.  The Decision could not have been faulted.  Having considered his grounds for application, the Court is satisfied that the Applicant’s grounds are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.

Conclusion

24.  For the above reasons, the leave application is refused.

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

[1] [2018] HKCA 549

[2] 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

[3] 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”)

[4] 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

[5] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[6] [2018] HKCA 524 at [14(1)]