FARUK K M v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2442/2019

[2025] HKCFI 2127

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2442 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 the Applicant being absent in open court;

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 23 August 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 16 August 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 15 November 2017 (the “Notice”), refusing his non-refoulement application.

Background

2.  The Applicant is a Bangladeshi national.  He sneaked into Hong Kong on 10 January 2015, and was arrested by the police on the following day.  He made an application for non-refoulement protection on 17 February 2015. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3]; and BOR 2 Risk^[4]. His application was rejected by the Director’s Notice.  His appeal was dismissed by the Board’s Decision.  He now applies for judicial review of that Decision.

The Applicant’s case

3.  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 (the “ROI”) in the presence of his lawyer.  In gist, he claims that if returned to Bangladesh, he will be harmed or killed by people of the Awami League (“AL”) for his involvement in political affairs of Bangladesh Nationalist Party (“BNP”) and its youth wing in the past and framed for a false charge of murder.    

4.  The Applicant, now aged 45, was born in Saganna Village, Jhenaidah District, Bangladesh.  He claimed that he first became the president of the Jubodal of Union Committee of Jhenaidah District in 1994, which is was the youth wing of BNP, and then the vice president of Jubodal of Police Station Committee of Jhenaidah District in 2000.  One day in 2007, a group of four AL people went to his tailor shop.  He knew two of them (“Raju” and “Sayed”).  They asked him to quit BNP and join AL.  He refused.  They then threatened to kill him if he did not give them 200,000 Bangladeshi takas (“BDT”) as donation to AL.  He also refused.  They left without hurting him, but continued to threaten him whenever they saw him on the street.

5.  To avoid the AL people, he moved to various places in Bangladesh from 2007 to 2010.  During that time, he did not participate in any political activities and did not encounter any problems.  He sometimes returned home to visit his family secretly.  In 2010, he decided to go to Malaysia to stay away from the threat from the AL people.  Upon his departure, an immigration officer told him that he was not allowed to leave unless he obtained police clearance, as he was involved in some cases.  After paying 50,000 BDT to the officer, he was allowed to depart.  He overstayed in Malaysia, and was eventually deported back to Bangladesh in 2012.  He did not have any problems with the Bangladeshi immigration authority on his return.

6.  In 2012, at the request of his BNP fellows, he agreed to get yourself involved in BNP’s affairs again, and became the district vice president of BNP’s volunteer wing in Jhenaidah District.  In August 2013, his neighbour, Azibur Rahman (“Rahman”) was killed.  He learnt from his BNP fellows that he was dragged into Rahman’s murder case. To avoid political revenge, he first moved to stay with his eldest brother (“Anam”), and then with his friend, both of them lived in Jhenaidah.

7.  One day in October 2013, he was arrested by the police for vandalising public properties during a rally.  He was detained in Jhenaidah Sadar Police Station for 14 days, during which he was ill-treated by the police every day.  The police officers blind-folded him, lay a piece of wet cloth on his face and suffocated him by pouring hot water on the cloth.  They also inflicted electric shocks on him, hit the soles of his feet, put him upside down with his hands tied, and kicked him.  They asked him to confess to Rahman’s murder, or they would put him through a court trial.  They continued to say if he joined AL, he would not suffer any ill-treatment.  He refused.  On the twelfth day of detention, the police asked him to get 200,000 BDT and hand it to Raju.  He then called Anam, who gave 60,000 BDT to Raju and Sayed, and 100,000 BDT to the police.  Two days later, he was released and went to a hospital in Faridpur District.  During his ten days hospitalisation, he did not hear any news about the AL people.  On being discharged from hospital, he stayed with his uncle in Mirpur, Dhaka, until he left Bangladesh in January 2015.

8.  Whilst in Hong Kong, he learnt from his wife that an unknown caller asked her for his whereabouts and contact number as well as a donation of 500,000 BDT.  He believed the caller was Sayed.

9.  The Applicant claims that state protection is not available because the police is under the control of AL.  He does not believe internal relocation viable, as the AL people could locate him throughout the country through their powerful network.

The finding of the Board

10.  The Applicant testified before the Board.  The Board had serious doubts about his claimed involvement in the BNP or some of its associated groups, in particular, that he would have been appointed to the position of president of the youth wing of BNP at the age of 14, with 30 other persons under him.  It also considered his evidence that he was appointed to the position of president of the youth wing almost at the same time as he joined the party incredible. When confronted with this issue, the Applicant obfuscated.  The Board therefore formed a strong impression that he was not speaking from his personal experience, and was attempting to manufacture a response that accommodated other aspects of his claims.

11.  The Applicant claimed to be the vice president of the volunteer wing of BNP in 2012 but he told the Board that it was formed in 2013.  When confronted with the anomaly, he gave confusing evidence as to how he was able to join the wing before it was actually formed.  But, according to the COI, the volunteer wing was formed in 2010.  The Board rejected his evidence and explanation.

12.  The Board was concerned about an undated and unsigned document adduced by the Applicant, which purports to be a receipt/BNP membership renewal document (the “membership document”).  The Applicant said he possibly obtained it in 1995 or 1996 but could not remember exactly when.  However, when he realised that his age as recorded on the membership document is 37 (he was 37 in 2017), he changed his evidence and said that it was not given to him in 1995 or 1996, and said that his family members renewed his BNP membership for him whilst he was in Hong Kong.  The Board did not accept his explanation and considered the incident evident that he tailored his evidence to fit his case.

13.  A more significant concern raised by this membership document is that it referred to the Applicant’s father as Abdul Rahman, which is the same name as the Applicant’s neighbour and member of the AL who was allegedly killed in the Applicant’s neighbourhood in 2013, but in his NCF the Applicant indicated that his father’s name was Ajibor Rehman Khan. The Board noted that the Applicant’s father’s name on the membership document was initially spelt differently, but was subsequently spelt as Abdul Rahman. It also noted from objective country of origin information (“COI”) that false documents are readily available in Bangladesh.  The Board found the document is not genuine and the Applicant’s claims to have been a member or president of the Jubodal of the BNP were fabricated.

14.  The Board also found his father’s name printed on the membership document was spelt differently initially from what he put down in his NCF, but was subsequently spelt in the same way as Abdul Rahman, the AL member who was purportedly killed in his area in 2013.  Hence, the Board had concerns as to the genuineness of the membership document, and his claim to have been a member or president of the youth wing of BNP.

15.  At the screening interview, the Applicant refused the immigration officer’s request to draw the BNP flag under the excuse that his drawing would be “ugly”.  The Board did not accept that artistic talent or skill was required to draw the BNP flag.  It considered that if he had the lengthy and extensive involvement with BNP, he would not have any difficulty drawing the flag.

16.  The Applicant claimed he could not tolerate the stress from the AL people in 2007 and relocated to Malaysia in 2010.  The Board could not understand why he left Bangladesh almost three years after he was threatened, especially as he had never been harmed and could return to his village to “secretly” to visit his family without attracting adverse attention from the AL.  It also did not accept his explanation that he was waiting for BNP to return to power, as AL won the election in late 2008, and the next election was five years away.  The Board doubted if the real reason for his move to Malaysia was related to the threats.

17.  The Applicant told the Board for the first time that upon his return from Malaysia in 2012, the AL people demanded money from him and uttered threats to him.  He could not satisfactorily explain why he had not raised this claim earlier or account for the inconsistencies in his evidence.  The Board considered it reasonable to expect him to recall this incident, if it had truly occurred soon after his return to Bangladesh and would have included it in his NCF.  

18.  Similarly, the Board found his explanation that it took him 18 months to arrange his departure to Hong Kong in 2015 problematic. The Board considered that if he had been facing false charges of murder and had been subjected to torture for 14 days by the police, he would have fled from Bangladesh at a much earlier time, since he already had his passport issued to him in 2012 rather than waiting for 18 months to do so.

19.  There are other inconsistencies of lesser significance between his testimony and his evidence in the NCF.  All-in-all, the Board concluded that the Applicant was not a truthful witness and had manufactured his claims to enable him to stay in Hong Kong. It found there could not possibly be any substantial grounds for finding that the Applicant would face a real risk of ill-treatment if refouled to Bangladesh.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claims for protection under any of the applicable grounds under the USM.  Hence, it dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

20.  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

21.  The Applicant did not advance any grounds for judicial review in his Form 86.  In his supporting affirmation, he advanced the following six grounds of review:

(1)  Procedural impropriety: Failure to properly apply paragraph 2 of the UN Committee against Torture General Comment No. 2 which requires that reforms and means of relief introduced must be effective;

(2)  Procedural impropriety: Failure to conduct sufficient enquiry into the relevant COI;

(3)  Procedural impropriety/Irrationality: Failure to give reasons for assessment of lack of BOR 3;

(4)  Error/Misdirection in law;

(5)  Procedural Impropriety; and

(6)  Error/Misdirection in law.

22.  The grounds provided by the Applicant are very familiar to the Court, as it has seen similar or even identical grounds in other applications.  The grounds appear like a template submission without regard to the actual facts of the case.  They are worded in broad and general terms and lacking in particulars.  The Applicant did not attend the hearing to perfect those grounds.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court 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 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 applicable to non-refoulement protection 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 analysed the evidence carefully, tested it against common sense, inherent probability and independent COI.  It found the Applicant incredible as regards the core issues of his claim.  It gave full reasons for its finding.  The centerpiece of his case is built on his political profile which attracted attention from people of the rival political party and the threat from them.  It found his membership document is a forged document.  It rejected his first time allegation that soon after his return from Malaysia he was approached and threatened by the AL people.  It 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.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

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

x

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 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

[2] 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”)

[3] 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

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

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