GAZI MD KHABIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1216/2019

[2023] HKCFI 2040

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1216 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 2 May 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”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High 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 was arrested by police for being suspected an illegal immigrant and was referred to the Immigration Department. He admitted that he came to Hong Kong illegally by boat on 10 September 2015. He lodged his non-refoulement by written significations on 30 September 2015.

5.  The applicant claims that, if refouled, he will be harmed or killed by the Awami League (“AL”) members because of his affiliation with the Jatiyotabadi Chatra Dal (“JCD”), which is a student wing of the Bangladesh Nationalist Party (“BNP”).

6.  Briefly stated, according to the applicant, he was a supporter of the JCD. In 2013. He assisted BNP to prepare for the General Election in January 2014. On 5 January 2014, the day of the General Election in Bangladesh, he assisted BNP and worked at a polling station together with 5 or 6 supporters. He saw Hashem Tafader (“Hashem”), a leader of the AL instructing the Al people to kill him. He also heard Hashem telling his people that he would give money to the police so that the police would not take up any case even if he was killed. He was attacked by 10-15 people. He ran away and hid in a nearby house where he lost consciousness. He was injured and was taken to a hospital for treatment. It took 7 or 8 days for recovery. AL won the election. After that incident, he was attacked by the AL members for 2 or 3 times. He felt pain, but there was no injury. The AL people had also gone to his father’s restaurant several times and caused a lot of damage there. They also ate food there without making any payment. His mother had reported the incidents to police but the police did not take any action. He left home in order to avoid the AL people. He was told from time to time that the AL people knew his locations. He went to live in his uncle’s place in Dhaka, his friend’s place in Shariatpur and his sister’s place in Comilla,. He had information that the AL people would conspire with the police to kill him by crossfire. In order to save his life, he left Bangladesh for Hong Kong. Details of his story are set out in paragraph 6 of the Director’s Decision.

The Director’s Decision

7.  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”).

8.  By way of Notice of Decision dated (“the Director’s Decision”), the Director dismissed the applicant’s claim as the level of risk of harm was assessed not substantiated [4]. In essence, the Director found that (i) low intensity and frequency of past ill-treatment from the AL members is indicative of a small risk of harm upon his return to Bangladesh; (ii) there is no objective evidence that the AL members conspired with police to kill him; (iii) [6]; given that he was a general supporter and low-tier worker for JCD, it will be unlikely that he will be targeted by the AL [17]; (iv) state protection will be available to him in Bangladesh; and (v) internal relocation in Bangladesh will be an viable option for him [22].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 30 January 2019, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of an interpreter.

10.  The Board considered the applicant’s evidence and found that (i) the applicant was being deliberately evasive, or was making his evidence up on the spot to explain inconsistencies put to him [75]; (ii) there were significant inconsistencies in the information provided by the applicant at different stages of processing which the Board did not consider have been satisfactorily explained and which also indicated that the applicant had not been truthful about his political activities [76]; (iii) the Board did not accept that the applicant was beaten while working as a polling agent for the BNP in the 2014 Upazilla election; (iv) the Board considered that the applicant had provided dishonest and dissembling evidence about the existence of documents that might support his claims [83]; (v) the Board did not accept that the applicant was forced to flee from his village fearing for his life, or that he moved to different locations in Bangladesh because he was not safe in any of them, or that he left Dhaka after residing there for at least 12 months because his location had been discovered by the AL people in his village who planned to kill him [84]; and internal relocation to another area including Dhaka is viable [88].

11.  For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

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

12.  The applicant has filed Form 86 dated 7 May 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of this application, he set out the grounds below.

(1)  Procedural impropriety: failure to conduct sufficient, independent inquiry into the relevant country of origin information (“COI”).

(2)  Failing to provide adequate reasons as to why the COI material in support of the TCAB and Director conclusion ought to be preferred over the COI material which is contrary to the same.

(3)  Failure to give reasons for assessment of lack of BOR 3 risk or BOR 2 risk/or insufficient basis to support conclusion of lack of BOR 3 risk.

(4)  Cherry-pick from the relevant COI material in order to support the conclusion of the TCAB.

DISCUSSION

14.  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).

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

16.  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.”

17.  As to his grounds in paragraph 13, supra, grounds (1) and (4) are only his personal opinions or comments without any evidence in support. Ground (2) is not a valid complaint because there was no preference of COI materials either by the Director or the Board. The Director referred to the COI relating to state protection, only to demonstrate that the Bangladesh authorities have been taking measures to improve the police performance and offer protection to citizens and there was no evidence to show that police in Bangladesh are unable to protect its people. The Board did not refer to COI on state protection. Ground (3) also fails as the Director and the Board had given sufficient reasons in support of their findings on BOR 2 risk and BOR 3 risk. In particular, the Board has found that the applicant’s evidence on the facts in support of his claim was not reliable. The applicant has no factual basis for his claim.

18.  The Board, for the reasons it had given in the Board’s Decision, did not accept the facts in support of his claim. See paragraph 10 above. There is no valid ground from the applicant to challenge the Board’s Decision.

19.  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.

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

CONCLUSION

21.  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