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

HCAL 2284/2019

[2024] HKCFI 3664

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2284 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;

The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 9 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 15 July 2019 (“Board’s Decision”) dismissing the applicant’s appeal against a Chinese decision of the Director of Immigration (“Director”) dated 29 November 2017 (“Director’s Decision”) rejecting the applicant’s non-refoulement claim.

2.  As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 21 November 2024. The applicant was absent from the hearing. Since the applicant could be contacted by telephone after his absence from the hearing, the court adjourned the hearing to 5 December 2024 to enable him to attend. At the adjourned hearing, the applicant attended in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Background

3.  The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.

4.  The applicant is a national of Bangladesh. The applicant claimed to have arrived in Hong Kong illegally by boat from Mainland China on 7 April 2015 and was arrested by the police on the same day. After he had been referred to the Immigration Department on 10 April 2015, the applicant lodged a non-refoulement claim on 11 April 2015 covering all applicable grounds – risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The applicant’s claim was based on a fear of being harmed or killed by members of Awami League (“AL”) and the Bangladeshi police. AL was a rival political party against the Bangladesh Jamaat-e-Islami Party (“BJP”) of which the applicant was a member.

5.  The applicant asserted that on 15 January 2015, he was assaulted by members of AL when he joined a block program upon the AL’s winning of the general election. When he returned home, his father informed him that police had been looking for him. He decided thereafter to run away from home.

6.  The Director decided against the applicant’s claim on all the above applicable grounds. After having taken all the relevant circumstances into account including the past ill-treatment, the severity of his injuries that he sustained, the Director found that there were no substantial grounds in believing that there would be any real and substantial risk of him being harmed or killed by the AL members. The Director found that the problem he had with the AL members was purely a private dispute between political parties. These was also an organization responsible for the internal oversight of the police. After having examined the country of origin information (“COI”), the Director was satisfied that both state protection and internal relocation alternatives were reasonably available. Hence, the applicant’s appeal to the Board.

7.  On 23 May 2019, the applicant attended a hearing before the Board. At the hearing, the applicant confirmed the truth and correctness of his evidence as contained in the hearing bundle and adopted it as the evidence for the appeal. After having considered the principles in relation to the assessment of evidence, the Board found that the applicant’s evidence was unreliable and incredible with numerous material inconsistencies and discrepancies between his evidence and the statements he provided in his refoulement claim. The Board found that the applicant’s evidence regarding his involvement with BJP and his political participation and the assaults by members of AL and the injuries allegedly sustained were inconsistent and incredible. The Board also concluded that the applicant would not face any risk of being harmed or killed by the members or supporters of the AL. Notwithstanding the Board’s rejection of the applicant’s claim on credibility, it went on to consider the COI, and found that both state protection and the option of internal relocation were available. The Board concluded that the applicant had failed to demonstrate that he was entitled to non-refoulment protection on any of the applicable grounds, and it affirmed the Director’s Decision.

Legal principles applicable to judicial review

8.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

9.  In the applicant’s Form 86, the applicant stated that he was not given an opportunity to put forward his submissions before the Board. It was further averred that the COI the Board relied on was not recognized or hearsay and outdated. The applicant repeated these grounds in in his supporting affirmation. At the hearing, this court had asked him to elaborate on these grounds. The applicant however informed this court that he had no knowledge as what had been written and these were not the grounds he was relying on. Instead, the applicant repeatedly told the court that he wanted to stay in Hong Kong as there were lots of problems in his home country. Since the applicant was acting in person, this court asked him what mistake or error he believed the Board had made. He repeated again that he only wanted to remain in Hong Kong. In any event, set out in Form 86 and his affirmation, the written grounds have not condescended to any particulars. He did not say on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

10.  The Board’s Decision was arrived at with the benefit of a hearing in which the applicant was able to clarify matters raised by the Board. After examining the applicant’s evidence in detail, the Board found that the applicant was not a credible witness. The Board’s further finding of the reasonable availability of state protection and internal relocation was made with reference to the relevant COI. These are findings of fact, which the court in a judicial review will not interfere with.

11.  In the Leave Application, the applicant has failed to identify any arguable error of law by the Board, any relevant matter that the Board had failed to consider or any other reason why the Board’s Decision was wrong. Having rigorously examined the Director’s Decision and the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness or irrationality in the Board’s Decision. The Board had properly examined the applicant’s issue with commonsense and high standard of fairness: see TK v Jenkins & Anor [2013] 1 HKC 526.

12.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Order

13.  The Leave Application be dismissed.

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