ALI HOSSAIN alias HOSSAIN ALI alias ABDUL KHAIR alias ABUL KHAIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1587/2019

[2024] HKCFI 1017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1587 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;

1.   Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and

2.   Application for 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 11 June 2019 for leave to apply for judicial review (the “leave application”) of the decisions of USM dated3 June 2019 and13 August 2018 (the “Notice”).  “USM” is named as the proposed respondent and “TCAB” as the proposed interested party.

2.  Enquiries from the relevant authorities revealed that the Applicant is a Bangladeshi national.   He had previously entered Hong Kong on 15 July 2003 as a visitor under the name of Ali Hossain.  He was arrested on 18 July 2003 for the offence of inflicting grievous bodily harm and was duly deported on 19 July 2004 pursuant to a deportation order after serving his sentence.  He entered Hong Kong again on 9 April 2007 under the name of Abul Khair and was permitted to remain until 23 April 2007.  He overstayed and was arrested on 13 December 2007.  His true identity was discovered on a finger print check.  He was duly convicted of two immigration related offences and sentenced to 22 months’ imprisonment on 9 January 2008.  On 18 June 2008, he made a torture claim.  After serving his sentence, he was transferred to immigration detention and then released on his own recognisance.  On 22 February 2013, his torture claim was rejected.  His appeal against that decision was dismissed by the Board on 7 May 2013.  That decision is now final.  On 11 March 2013, he submitted a written representation of his intention to lodge a non-refoulement claim.  Subsequently, his claim was assessed on all available grounds other than torture risk ground, namely BOR 3 Risk[1] ground; Persecution Risk[2] ground; and BOR 2 Risk[3] ground.  By a Notice of Decision dated 13 August 2018 (the “Notice”), the Director of Immigration (the “Director”) rejected his claim.  He appealed to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) against the Director’s decision in the Notice.  On 3 June 2019, the Board dismissed his appeal (the “Decision”).

3.  Pulling all these facts together, it became obvious that “USM” means the Unified Screening Mechanism under the non-refoulement regime which came into operation in March 2014, albeit a year after the Applicant lodged his non-refoulement claim, “TCAB” means the Board, the decision dated 13 August 2018 refers to the Director’s decision in the Noticerejecting the Applicant’s non-refoulement claim, and the decision dated 3 June 2019 refers to the Decision of the Board dismissing his appeal against the Director’s Notice.  However, 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[4].  To give effect to the Applicant’s intention, leave is granted to amend his Form 86 by substituting the Board and the Director as the proposed respondent and proposed interested party respectively and making the Board’s Decision the decision in respect of which relief is sought.

4.  The Applicant had not requested an oral 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

5.  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 will be harmed by two moneylenders upon his return to Bangladesh because of his inability to repay the loans borrowed from them.

6.  The Applicant, now aged 62, was born in Brahmanbaria District, Bangladesh.  He had received 12 years of education and had operated his garment trading business for over two decades since leaving school.

7.  He borrowed 600,000 Bangladeshi Taka from a moneylender in March 2001 at a monthly interest rate of 10%.  About five months later, he borrowed 800,000 Bangladeshi Taka from another moneylender at the same interest rate.  Both moneylenders were supporters of the Bangladesh National Party (“BNP”).  Both loans were taken out for the purpose of his garment business.  The loans were witnessed by two witnesses but were not evidenced in writing.

8.  The Applicant was only able to pay some of the interests owed.  The moneylenders accompanied by the witnesses to the loans made a police report at Kosba Police Station at the beginning of 2003.  As he was imprisoned in Hong Kong in 2003, he was unable to make money to repay the loans. 

9.  The Applicant was intercepted by the police in around August 2004 when he returned to Bangladesh from Hong Kong.  His brother paid bribes to the police to secure his release.  Around the end of 2005, the moneylenders found out where the Applicant was living and went to his home to look for him, but he was not at home when they visited.  The Applicant then fled to another village four miles away from where he was staying.  He travelled between Hong Kong and Bangladesh in around 2005 and 2006.  Again, the moneylenders found out his location around the end of 2006. The moneylenders together with some members of the BNP and the police visited his home.  Again, the Applicant managed to escape unnoticed.

10.  Towards the end of January 2007, while the Applicant was heading to his sister’s house, he was intercepted by the moneylenders and members of the BNP.  There were about 15 of them in number.  They beat him with fists and wooden sticks for five to seven minutes.  They left when the villagers intervened.  The Applicant was hospitalized for five days and it took him two months to recover.  He still felt pain in his right knee from time to time.  That was the only incident when he was attacked by the moneylenders.

11.  The Applicant moved back to his home in Village Raitala after his discharge from the hospital.  He stayed there peacefully for about one and half months.  Then he flew to Hong Kong on 23 March 2007 using his passport.

12.  He claimed that the moneylenders had told his mother in late 2013 that they would kill him unless the loans were repaid.  His mother then told the moneylenders that she would sell her land to make partial payments.  However, she never did and passed away the next year. 

13.  The Applicant claimed that his son was also threatened by one of the moneylenders in 2015.  He said neither him nor his family reported the matter to the police because they believed the BNP had great influence over the police.  The police actually came to his home from time to time asking for bribes because of the complaint filed against him.  He does not believe internal relocation is feasible because the moneylenders could locate him with their BNP connections.

The finding of the Board

14.  The Applicant testified before the Board.  The Board found him evasive.  He frequently failed to give a direct response to questions asked of him and gave irrelevant answers which had been repeated on multiple times.

15.  The Board identified a number of inconsistencies in his testimony before the Board and in his evidence before the Director.  The Applicant was unable to give satisfactory explanations for the inconsistencies.   For example, he claimed that he had never repaid the moneylenders, but later he said he paid them small sums to keep them quiet.  He claimed he was unable to repay because he was imprisoned in Hong Kong between 2001 and 2003, but he was not imprisoned until 2003 and was unable to explain what happened between 2001 and 2003.  He retracted his story before the Director that the moneylenders had discovered his address twice before they finally intercepted him and attacked him in January 2007.  Instead, he told the Board that he was residing in Dhaka between 2004 and 2007 and the moneylenders were unable to locate him during that period.  The Board found him incredible and his evidence a complete fabrication.

16.  The Board also found many aspects of his case inherently improbable.  It found, for example, that there was no good reason for the moneylenders to lend such large sums of money to the Applicant without any loan documents.  The Applicant was also unable to explain why he need to borrow money in 2001 when his business had been operating since 1985.  He tried to explain that he need the money for treating his wife’s illness, but that explanation had never been raised before the Director. 

17.  More importantly, the Board drew adverse inference on the Applicant’s credibility from his using two different identities to enter Hong Kong and his attempt to mislead the Board by suggesting that he was traveling between Bangladesh and Hong Kong between 2003 and 2004 when he was in fact imprisoned.  He was unable to give any credible explanation for doing so. 

18.  The Board found the Applicant utterly incredible and rejected his evidence in its entirety.  Having dismissed the only factual basis of his claim for protection, namely the alleged threats from the moneylenders, the Board found that he had failed to establish that he would be subject to any of the proscribed risks of harm on his return to Bangladesh.  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 remaining three applicable grounds and dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

19.  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

20.  The Applicant did not advance any grounds for judicial review in his Form 86.  In his supporting affirmation, he only annexed a copy of the Board’s Decision and what appears to be his hearing bundle before the Board.  He had been invited by the Court’s letter dated 6 November 2023 to advise the Court of his first language and to file submissions.  He did not respond. 

21.  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.  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 Board found the Applicant’s evidence incredible and his case concocted.  He had therefore failed to establish the factual basis in support of his claim for protection.  As he bears the burden of proof, albeit on a low standard, this finding is necessarily fatal.  It was on that 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.  These are finding of facts 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 and irrationality. The Court cannot 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.  The proposed judicial review has no realistic prospect of success.   Accordingly, the application for leave to apply for judicial review 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] 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”)

[2] 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

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

[4] [2018] HKCA 549

[5] [2018] HKCA 524 at [14(1)]