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HCAL 1002/2019
[2023] HKCFI 2542
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1002 of 2019
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BETWEEN
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Salim Mohammed |
Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 8 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”). He also applied for leave for judicial review of the Director’s Decision rejecting his application. Since the Board had dealt with his appeal against the Director’s Decision, his application against the Director should be dismissed in limine in accordance with the decision of the Court of Appeal in Re: Moshsin Ali [2018] HKCA 549[1].
2. The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a hearing was fixed for him to take place on 6 March 2023. But the applicant was absent without prior notice to the Court. I shall deal with his application on paper.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
The applicant
4. The applicant is a national of Bangladesh. He entered Hong Kong illegally on 18 May 2014 and was arrested by the police as an illegal immigrant on the same date. On 24 May 2014, he lodged a non-refoulement claim. His claim was based on a risk of harm from his political opponents from Awami League (“AL”) as he was an active member of Jamaat-e-Islami (“JEI”).
5. According to the applicant, the AL came into power in 2009 and, since then, it had been targeting its political opponents. Many of the senior JEI members were either arrested or sentenced to death or life imprisonment for false charges. The applicant believed that he was on the AL’s watch list as he was an active member for the JEI. He also claimed to be attacked two or three times on the streets by the supporters of the AL after the 5 January 2014 general election. Meanwhile, he claimed to be arrested by the police and threatened to pay bribes. In 2011 and late 2013, he was arrested by the police twice.
6. In details, as the general election approached in 2014, the JEI decided to boycott the election. The applicant was responsible for dissuading the citizens from voting for the AL. However, the AL still won the election. It started to eliminate the oppositions to solidify its power. There were a lot of riots and widespread violence against AL’s political opponents. A few days after the election, the applicant was attacked by eight to ten AL members with wooden sticks.
7. The applicant escaped to his father-in-law’s residence. However, he was informed by his wife that, three to four days after his departure, the AL members attacked his house and burnt it down. Luckily, his wife and children were able to leave the house on time. Thereafter, he learnt from his party people that he was on the AL’s watch list. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 29 March 2018 by the Director (the “Director’s Decision”).
The Director’s Decision
8. The Director considered the applicant’s claim in relation to the following risks:
a. risk of torture under Part VIIC 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 the applicant’s claim. In elaboration, the Director found that (i) there was no evidence of severe pain and suffering that attained the requisite severity [11]-[29]; (ii) there was no evidence that he was adversely targeted by the AL [30]-[64]; (iii) the applicant’s family were left unharmed in the home village [65]-[68]; (iv) there was no evidence of state involvement [69]-[80]; (v) state protection would be available to him [81]-[100]; and (vi) internal relocation was a viable option [101]-[112].
The Board’s Decision
10. The applicant appealed the Director’s Decision to the Board. On 4 December 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [27].
11. Having considered the evidence, the Board made the following findings. The Board first noted that the applicant’s claimed fear of harm based on a political violence between the opposite parties was consistent and supported by the country of origin information (“COI”) [30]. Nevertheless, the Board noticed that the applicant could only produce a letter from an alleged JEI leader to support his membership. After reviewing the documents and the inquiries with the applicant, the Board refused to place weight on the said letter [31]-[33]. The Board further observed that the applicant’s evidence on his previous involvements with the JEI was inconsistent and constantly changing [34]-[35]. He also contradicted himself on the evidence in relation to the police bribes [36].
12. In light of the aforesaid inconsistencies, the Board concluded that he was not a witness of truth and rejected his claimed involvement with the JEI and thus refused to accept that he was targeted by the AL members [37]. On the basis of lack of credibility, the Board rejected the applicant’s 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 12 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 his grounds which I shall summarize below. The grounds are confined to the Board only.
(1) He was not legally represented and there was no interpretation service for his preparation of the appeal to the Board.
(2) The bundle of documents was delivered to him shortly before the hearing and he was assisted as the documents are in English, which is procedurally unfair for him.
(3) The Board’s Decision was not read to him or translated to him.
(4) The Board did not appreciate the corruption of the police in his country and it will take years to redress these problems.
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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
16. The Court will bear in mind that the Board’s Decision 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. The Board, for the reasons given above, did not believe that the applicant’s evidence and rejected the facts of his claim.
19. The grounds set out in paragraph 14 above do not assist him.
20. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:
“22. … …The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”
21. The Court of Appeal in in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held:
“16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”
22. His opinion on police corruption in his country is not a valid ground in support of his claim. Therefore, all of his grounds fail.
23. 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.
24. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.
CONCLUSION
25. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 17th day of October 2023
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(M.O. WONG)(Ms)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 17/10/2023
Salim Mohammed
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 17/10/2023
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11199/18/4/209/B1210
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 569/18 (formerly RBCZ 3001128/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] “45. … the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. … the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”
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