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HCAL 1040/2019
[2022] HKCFI 1774
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1040 of 2019
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Mannan Abdul |
Applicant |
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Torture Claims Appeal Board / |
1st Putative Respondent |
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Non-Refoulement Claims Petition Office |
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Director of Immigration |
2nd Putative Respondent |
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 To:
Leave to apply for Judicial Review refused.
Observations for the Applicant (Order by Deputy High Court Judge To):
Introduction
1. This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 11 April 2019 (the “Decision”). Though the Director of Immigration (the “Director”) is named as a proposed respondent, no relief is sought against him in respect of any of his decisions.
2. The Applicant is a national of Bangladesh, now aged 57. He entered Hong Kong on 5 October 2012 illegally and was arrested by the police on the same day. He raised a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. His application was rejected by the Director on 22 May 2013. His appeal against that decision was rejected by the Board on 4 November 2013. That decision became final.
3. On 20 March 2014, the Applicant raised a non-refoulement claim. That claim was assessed on the remaining three applicable grounds under the Unified Screening Mechanism (“USM”), namely, BOR 3 Risk[1]; Persecution Risk[2]; and BOR 2 Risk[3]. By a Notice of Decision dated 15 August 2018 (the “Notice”), the Director rejected his claim. The Applicant’s appeal against the decision in the Notice was dismissed by the Board’s Decision dated 11 April 2019. On 17 April 2019, he applied for leave to apply for judicial review of the Board’s Decision.
The Applicant’s case
4. The following account of the Applicant’s case is mainly based on the information in the torture claim form and supplementary claim form prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he alleged that he would be harmed or killed by people of the Awami League political party (“AL”) because of his participation in the activities of the rival Bangladesh Nationalist Party (“BNP”), if refouled.
5. The Applicant was born and raised in a village in Dhaka, Bangladesh. He is married with one daughter and three sons. They used to reside in Jessore, Bangladesh.
6. The Applicant joined the BNP in 2000. He held no official position with the BNP. He went to work in Saudi Arabia in June 2000 and returned to Bangladesh in May 2003. He worked with BNP as a field worker. He participated in a rally on 22 April 2012 protesting against the secret abduction of a BNP leader. Because of his participation in the rally, a local AL leader and Member of Parliament Advocate and Housing Minister in the government, Abdul Mannan (“Mannan”) told him to leave the BNP. He refused. As a result, Mannan’s people called him and visited his home threatening to kill him, if he did not quit BNP.
7. About a week after the rally, his friend Gazi told him that a false case of criminal damage during the rally had been filed against him. From April 2012 to May 2012, Mannan’s people and Mannan himself called him at least six times threatening to kill him if, he did not quit BNP.
8. In May 2012, Mannan’s brother (“Khan”) went to the Applicant’s home with five to seven of Mannan’s men. They warned him to leave BNP or he would be killed. The Applicant argued with them but did not suffer any injury during that incident. Khan and the men came again about two to three weeks later. They were about to beat him but they stopped when the neighbours arrived. The Applicant was not hurt in that incident. He did not report the incidents to the police because he feared that he would be arrested in connection with the false criminal damage case, if he attended at the police station.
9. Feeling that his life would be in danger, the Applicant and his family moved to Jessore, Bangladesh in June 2012. However, Mannan’s people was able to find out his new telephone number and called him twice threatening to kill him if they could locate him. Out of fear, the Applicant fled to Hong Kong on 5 October 2012.
10. The Applicant admitted that nothing happened to him between October 2012 and July 2018, except that he heard from Gazi that another false case of murder had been filed against him around 2013. He had no details about that false case because he had lost contact with Gazi.
The finding of the Board
11. The Board noted that the Applicant was a low ranking field worker with no official position in BNP and that his problem with Mannan only started with his participation in the rally in 2012. He admitted many BNP leaders also took part in the rally, but was unaware if any of them had been subjected to threat like him. In the circumstances, the Board found it inconceivable that he would not have known if other BNP members, especially BNP leaders, had been similarly harassed and threatened. The Applicant was unable to explain why a housing minister and his brother would have picked upon a low ranking field worker like him and expended so much time and energy in threatening him all because he had participated in the rally.
12. The Board also found it incredible[4] that his friend Gazi would have failed to give any details of the alleged murder case against him, such as the time, location or the victim. It refused to give weight to the hearsay evidence from Gazi about the alleged false murder case. The Board inferred from the circumstances that the Applicant invented the false murder case in order to strengthen his case that his life will be in danger if he is returned to Bangladesh, not only because of the AL members’ threat but also because he will be immediately arrested and charged with murder upon his return and he will not receive a fair trial. The Board found the Applicant incredible and rejected his account as inherently improbable.
13. For the above reasons, the Board found that the Applicant had failed to show there would be substantial grounds to believe that he would face a real risk of being killed, tortured, persecuted or otherwise harmed, if he were to be refouled to Bangladesh. Even on his own evidence, the Applicant had only been verbally threatened and had never been physically assaulted. In conclusion, the Board found Applicant had failed to establish that he has a valid claim for non-refoulement protection on any of the three remaining applicable grounds under the USM and dismissed his appeal.
The applicable legal principle
14. 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
15. The Applicant did not put forward any grounds in his notice of application for leave to apply for judicial review or his supporting affirmation.
16. At the hearing, the above legal principles were explained to him. He was specifically invited to identify any errors of law, procedural unfairness or irrationality in the Decision. He was unable to point to any such vitiating elements. In the absence of any specific grounds for judicial review, the Court could only critically examine the Decision for errors of law, procedural unfairness or irrationality.
17. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the three remaining applicable grounds under the USM for claiming non-refoulement protection, had properly referred to and correctly applied the applicable legal principles, including the standard of proof and burden of proof, and quoted relevant precedents in support. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decision in the Notice. It correctly identified the factual and legal issues involved in the claim. The Applicant’s claim is founded on the alleged threat from Mannan, his brother and their men. The Decision of the Board was based on its finding of the Applicant’s credibility and inherent probability of his case. The Board carefully weighed the evidence and assessed his credibility. It found him incredible and did not accept his evidence about the threats to his life. As the Applicant bears the burden of proving his claim, such a finding is fatal. It was on that basis that the Board found there was no factual basis to support the Applicants’ claim for non-refoulement protection under any of the remaining three applicable grounds.
18. The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. 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 Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.
Conclusion
19. For the above reasons, leave to apply for judicial review was refused.
Dated the 15th day of June 2022.
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( Allen LEE )
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 his 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 15/6/2022
Mannan Abdul
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 15/6/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 13117/18/8/387/B1489
Director of Immigration
2nd Putative Respondent’s ref. no.: QA T/C 2205/18 (formerly RBCZ 2002388/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
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] [23] of the Board’s Decision
[5] [2018] HKCA 524 at para 14(1)
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