ISLAM SHEIKH NAZRUL v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

HCAL 936/2019

[2022] HKCFI 1526

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 936 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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 7 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant stated in Form 86 “An oral hearing of this application under O.53, r.3(3) if leave is not granted on the papers.” Under O.53, r.3(3), the application is an ex parte application for which the court may determine without a hearing unless a hearing is requested in the notice of application. The court therefore treated it as a request for a hearing and a date was fixed for the hearing.

3.  However, due to COVID-19 pandemic, the government discouraged social gathering and the court had to suspend hearings for a period of time. Since the applicant had submitted lengthy written submissions, the court sent a letter dated 3 March 2022 to the applicant and invited him to make further submissions in order to dispense with hearing in court. The letter further said if he takes the view that it is not possible to make written submissions in place of oral hearing, he should so inform the court, stating his reasons why this is the case and if he does not respond to the letter within 7 days, the court will proceed to consider her application on paper. The written decision will be sent to the applicant in due course.

4.  The applicant did not respond to the said letter within 7 days.

5.  Under Order 1A rule 1(b) of the RHC, the underlying objectives of the rules are to ensure that a case is dealt with as expeditiously as is reasonably practicable. Under Order 1B rule 1(l), the court has the power to take steps to make any order for the purpose of managing the case and furthering the underlying objectives set out in Order 1A. I consider that the court has the power to dispense with open hearing of the applicant’s application without doing injustice to his application. I therefore proceed to consider his application on paper.

The applicant

6.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 1 December 2015 and was arrested on the same date.  On 5 December 2015, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the Awami League (“AL”) because of his involvement in Jubodal, the young wing of Bangladesh Nationalist Party (“BNP”).

7.  According to the applicant, he joined the Jubodal as an ordinary member under the influence of his elder brother in 2010.  Since January 2009, AL had been the ruling party in Bangladesh.  On 5 May 2013, the applicant participated a large scale demonstration but they were later dispersed by the police by force.  To revenge against the participants, the AL members threatened and attacked the applicant.  Thereafter in July 2013, some men again attacked a BNP meeting with grenades and petrol bombs.  The applicant was burned and later hospitalized.  Out of fear, the applicant fled to other cities before eventually leaving for Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision by the Director dated 23 July 2018 (the “Director’s Decision”) and paragraphs 8 to 29 of the Board’s Decision described below.    

The Director’s Decision

8.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

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

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

9.  By way of the Director’s Decision, the Director dismissed his claim. The Director refused to accept that he would face any real and personal risk of harm upon refoulement because (i) there was no reason to believe that he was a prioritized target of AL and the low intensity and frequency of past ill-treatment indicated an unlikelihood of future risk of harm [11]-[14]; (ii) state protection would be available to him [15]; and (iii) internal relocation was a viable alternative [16].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board.  On 7 December 2018, the Board conducted an oral hearing for his appeal, during which he answered several inquiries raised by the Board [54].

11.  The Board observed that the claimed threats and alleged attacks from the AL members were acts of terrorism without having a target at anyone in particular.  There was no evidence that the AL targeted the applicant personally [57].  Also, on the alleged incidents, the AL members were acting in their personal and private capacities without state involvement [75].  Meanwhile, there was no evidence that the AL members looked for the applicant outside his home area [58].  The applicant was also able to travel in and out of Bangladesh freely and his evidence that the BNP members were killed internationally was based on hearsay information [59]-[61].  The Board also refused to place weight on the hearsay evidence from the applicant’s wife and mother and it found that the applicant’s immigration record was inconsistent with someone who genuinely sought protection [62]-[63].  The Board further found that, based on the country of origin information, state protection and internal relocation were both available to the applicant [64]-[68].  In addition, the inconsistencies of the applicant’s evidence rendered him an unreliable witness [69]-[70].

12.  For the aforesaid reasons, the Board rejected his claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

13.  The applicant has filed Form 86 dated 8 April 2019 for leave to apply for judicial review of the Board’s Decision.

14.  In his affirmation in support of his application, the applicant set out the grounds. However, he had also attached a written submission with grounds to challenge the Board’s Decision too. I shall summarize all those grounds below.

(1)  The hearing bundle was given to him shortly before the appeal hearing, so he did not have sufficient time to prepare for the hearing and he was confused at the hearing. The documents are in English and he did not have interpreter’s service. He had answered the questions from the Board honestly, but his credibility was found questionable.

(2)  He was not given a chance to make reply submission in response to the submissions made by the representatives of the Director.

(3)  The Board is in breach of procedural fairness because:

i.     it had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that he did not satisfy the requirements;

ii.    the adjudicator acted in a procedurally unfair manner in dealing with his appeal;

iii.   the Board’s decisions to refuse his appeal were unreasonable or irrational in the public law sense or are/a result of procedural errors or unfairness;

iv.   the Board failed to meet the greater care and duty owed to a self-represented claimant.

(4)  The Board had relied upon the source of news which is not officially recognized or it is simply hearsay. It had also relied upon some cases which are fairly outdated, which resulted in them making groundless speculations that it is safe for him to return to his country.

DISCUSSION

15.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

17.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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.”

18.  For the reasons below, those grounds above are not valid reasons to challenge the Board’s Decision.

19.  There is no record that the applicant had told the Board that he was not given sufficient time to prepare his case and asked for an adjournment of the hearing. Nor was there any record that he was confused at the hearing. He said that he had answered all questions put to him by the adjudicator, which shows that he understood what was going on in the hearing. The Court of Appeal in Re: Sattar Abdul [2019] HKCA 613 held:

“13. … it is trite that the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant: see Re Zaman Muhammad [2018] HKCA 486 at [13]; and Re Gurnishan Singh [2018] HKCA 704 at [13].”

20.  Ground (1) fails. Ground (2) fails because the Director was not legally represented at the hearing. Grounds (3) and (4) are his bare allegations, opinions or comments without any evidence in support.

21.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

22.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

23.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

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