MADBAR MD FARUK v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2664/2019

[2025] HKCFI 2543

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2664 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 oral submissions by the Applicant 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 12 September 2019 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”), a copy of which (the “Decision”) is annexed to his supporting affirmation dated 5 September 2019. By that Decision, the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 12 February 2018 (the “Notice”), refusing his non-refoulement application.

Background

2.  The Applicant is a Bangladeshi national. He entered Hong Kong illegally by boat on 9 November 2015 and was arrested by the police on the same day. He made a non-refoulement claim on 12 November 2015. In due course, his 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 claim was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision. He now applies for leave to apply 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 prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims that if returned to Bangladesh, he will be harmed or killed by his political enemies in the Awami League (the “AL”) because of his participation in the Bangladesh National Party (“BNP”) and his refusal to leave the BNP.

4.  The Applicant, now aged 43, was born and raised in Village Sujandol, Union Domshar, Kuarpur, Palong, Shariatpur, Dhaka, Bangladesh. He is married. His wife, parents and three siblings are living in Bangladesh, and one brother is living in Malaysia. He received formal education for five years. After leaving school, his family supported his living until mid-2007. He owned a readymade garments shop from mid-2007 to 2014 and worked as a vegetables wholesaler from 2014 to 2015.

5.  The Applicant claimed that in 2005 he joined the Jubodol which is the youth wing of the BNP. On 5 January 2009, he became the publicity secretary of the Jubodol in Domshar Union Office. Madbor was the president of the AL in Domshar Union Office. He claimed that since 2013, Madbor and his AL members started uttered verbal threats to kill him, if he did not resign from his post as publicity secretary of the Jubodol and leave BNP (the “first incident”). He filed a complaint at the Palong Police Station, but the officer-in-charge did not give him any document in return, presumably suggesting that the officer did not accept his complaint.

6.  Since the AL won the general election in 2014, its members started harassing members of opposition parties including the BNP. On 5 January 2014, ten to fifteen people including Madbor and his nephew holding sticks went to the Applicant’s home. They scolded him with abusive language and threw bricks and stones at his house. The Applicant escaped through the back door. He stayed at the home of his friend (“Amir”) in Shariat Pur town area. He later learnt from his mother that Madbor and his people had broken into and vandalised his home (the “second incident”). They also asked his mother for his whereabouts.

7.  On the following morning, eight to ten strangers claiming to be AL members attacked the Applicant at his garments shop with wooden sticks for an hour. He suffered a head injury and fainted (the “third incident”). When he regained consciousness, he found himself in the Shariatpur Sadar Hospital. He learnt he had been unconscious for two days and that Madbor had assigned people to attack him. He was hospitalised for seven days. After his discharge from the hospital, he tried to file a complaint at the Palong Police Station, but the police refused to help and stated that they had received orders from their superiors that they could not act against AL-related individuals.

8.  The Applicant continued to hide at Amir’s home for a month. In mid-February 2014, he returned to his home to collect his belongings. His parents told him that Madbor and his AL members were looking for him and threatened that he had to leave Jubodol. They demanded 1,000,000 Taka from his parents, if his parents could not hand him to them. On his parents’ advice he went to stay with his sister’s brother-in-law in Nandipara.

9.  One day in September 2015, he ran into Madbor in Gulistan. Madbor was unable to catch him because he was on a motorcycle (the “fourth incident”). To avoid Madbor and his AL members, he went to India on 2 October 2015 and returned to Nandipara on 4 October 2015. He did not seek asylum in India because he was a tourist. On 2 November 2015, he flew to Guangzhou in Mainland China.

10.  He does not believe the Bangladeshi authorities and police could protect him against the ruling party because he is a BNP member. He does not believe internal relocation feasible, as Madbor and his AL members could locate him through their powerful network throughout the whole country.

The finding of the Board

11.  The Applicant attended the hearing, but “made an informed decision and opted not to give evidence”. The Board could not test the veracity, truthfulness and reliability of his evidence and document. It held his failure to testify adversely affected the weight to be given to his evidence. At paragraph 52 to 54 of the Decision, the Board said:

“As the [Applicant] made an informed decision and opted not to give evidence at the oral hearing, the Board did not have the [Applicant’s] assistance in relation to the veracity of the documents submitted by him. The Board could neither ask the [Applicant] for any explanation for his failure to recognise a significant leader of his political party.

The medical receipt provided by the [Applicant] only provides brief information recording the [Applicant’s] hospitalization. Even if the Board accepts its genuineness, without the [Applicant’s] oral evidence at this hearing, the Board could not question the [Applicant] regarding the causation of injuries he suffered and the discrepancies in the length of attack in the alleged 3^rd Incident.

As the [Applicant] did not give evidence in the hearing, the Board could not question the inconsistencies nor unreasonableness in his case, it adversely affects the weight to be given to the information provided by the [Applicant].”

12.  In respect of Persecution Risk ground, the Board held at paragraph 58 of its Decision that it was “not persuaded that the [Applicant] will be exposed to the risk of persecution, if refouled”. The underlying reason presumably is at paragraph 59 of the Decision where it said “the [Applicant’s] evidence was based on bare assertions, hearsay and speculation.” It made various observations and criticisms about suspicious circumstances in his written evidence which all boil down to the absence of opportunity to hear the Applicant’s explanation or to test the veracity of his evidence. Then, it concluded at paragraphs 67 and 68 that it was not persuaded that the [Applicant] had been persecuted or ill-treated in the past on account of race, religion, nationality or membership of a particular social group or political opinion and was also not convinced that he will be faced with a future risk of harm, if refouled.

13.  In respect of BOR 3 Risk ground, the Board reiterated in paragraph 83 of its Decision, obviously also for the above reasons, that the Applicant had failed to factually establish his case.

14.  In respect of Torture Risk ground, the Board found also for the same reason that there was no credible evidence of any severe pain or suffering and hence the Applicant’s case did not fall within the ambit of ‘torture’ as defined under section 37U(1) of the Immigration Ordinance. However, it also found even if his assertions were true, the level of state protection will negate the level of risk.

15.  In respect of BOR 2 Risk ground, the Board found on the basis of the Applicant’s evidence that other than the third incident, there were no other direct threats to his life and the violence exerted in that incident was skirmish. Hence, he failed to establish his claim under that ground.

16.  Lastly, the Board found on the basis of independent and credible country of origin information (“COI”) in paragraphs 48 to 51 that adequate state protection will be available to the Applicant and in paragraphs 69 to 76 that he could also avoid the risk by internal relocation.

17.  Applying the law applicable to non‑refoulement protection, it found the Applicant is not entitled to protection under any of the applicable grounds under the USM. Hence, it dismissed his appeal against the decision of the Director in his Notice.

Legal principles applicable to judicial review

18.  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

19.  The Applicant did not advance any grounds of judicial review in his Form 86 nor in his supporting affirmation. He only annexed a copy of the Board’s Decision and a 167-page hearing bundle to his affirmation to support his claim. At the hearing, after the legal principles in the above section had been explained to him, he confirmed he had no complaint about procedural unfairness or irrationality in the Decision, but submitted that the Board’s finding is an error of law. He said his home had been burnt and his business destroyed by his enemies and he had produced corroborating pictures. He said except for a few he had provided all documents the immigration officer asked for, such as his medical evidence, evidence of his membership in the BNP, etc. The Board had considered the evidence and documents he mentioned. As for the Board’s treatment of those evidence, the Court shall leave it to its overall scrutiny of the Decision.

Overall scrutiny

20.  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; standard of proof; and correctly identified the issues. However, the Court has reservations about its assessment of the Applicant’s credibility and some of its finding of fact, which arguably may be the result of error of law and breach of the high standard of fairness.

21.  As noted in paragraph 11, the Applicant made “an informed decision” and opted not to give evidence. The Board considered that adversely affected the weight to be given to his evidence because it could not test the veracity, truthfulness and reliability of his evidence and document. It is not known what the Applicant had been informed of to qualify his decision as “an informed decision”. The Board made a decision to call an oral hearing obviously because there were factual issues in dispute which could not be resolved on paper or there were materials issues which required clarification. As a matter of law, when such hearing is attended by the claim, all the rules of fairness that are required in an oral hearing would come into play. One such rule is the rule in Browne v Dunn[6]. The essence of the rule is that where it is intended to suggest that a witness is not speaking the truth or is lying on a particular point, or if there is an intention to impeach the credibility of the evidence of the witness, this should be pointed out to him, so that he may have the opportunity of replying to, explaining or otherwise dealing with the aspect of the evidence, allegations or accusation to which his attention is drawn. In MS v Torture Claims Appeal Board[7]held, without explicitly invoking the rule in Browne v Dunn that as a matter of fairness, a claimant should be made aware of the point if the Board were to draw an adverse inference from his behaviour in conducting his claim.

22.  This is the precisely the situation which the Board found itself to be in because the Applicant made “an informed decision” not to testify. While there is no need to put every minute detail of the queries to the Applicant, he must be given notice that some aspects of his evidence would not be accepted or his credibility in that regard would be impeached. Reading the Decision, there is nothing to suggest this has been done. Has his attention been drawn to the issues which the Board had queries of? What had the Applicant been informed of before he made his decision not to testify? Was his decision really an informed decision? However, it was the basis of his decision not to testify that the Board found the genuineness of his medical receipt and his involvement in the Jubodol questionable. It found these adversely affected the weight to be given to the information he provided. That, at least contributed in part to the Board’s conclusion that it was not persuaded that he had in the past been persecuted or ill-treated under Persecution Risk ground, subject to torture or cruel, inhuman or degrading treatment or punishment under BOR 3 Risk ground, or inflicted with severe pain or suffering within the meaning of ‘torture’ as defined under the Immigration Ordinance. Arguably, the Decision was made as result of error of law and/or breach of the high standard of fairness. However, for the following reasons, it would be a futile exercise to pursue that possibility.

23.  The Board’s finding under BOR 2 Risk ground was made on the basis of the Applicant’s evidence. That finding has not been tainted by the adverse influence drawn because of his failure to give evidence. As for the other three applicable grounds, the Board found on the basis of COI that adequate state protection is available in the Applicant’s home country and that the risk of harm is located in his home area only and could be avoided by internal relocation. These findings are also made on the basis independent, authoritative and credible COI free from the adverse inference drawn on the Applicant’s failure to testify. Thus, despite the above defects, the Board’s Decision could still stand because of availability of state protection and internal relocation.

24.  These findings 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 proposed judicial review has no realistic prospect of success.

Conclusion

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

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