ISLAM MD ZAHIRUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2086/2018

[2023] HKCFI 147

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2086 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

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 23 July 2018 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 24 September 2015 and 30 March 2017 (respectively, the “2015 Notice” and “2017 Notice”).

2.  The Applicant is a Bangladeshi national, now aged 55. He entered Hong Kong from the Mainland on 5 October 2012 illegally and was arrested on the same day. On 13 October 2012, he raised a torture claim which was later converted to a non-refoulement claim

3.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By the 2015 Notice, the Director rejected his claims under the first three applicable grounds. By the 2017 Notice, the Director rejected his claim under BOR 2 Risk as well.

4.  He appealed to the Board against the decision of the Director in the two Notices. His appeal was dismissed by the Board’s Decision. On 2 October 2018, he applied for leave to apply for judicial review of that Decision. The Applicant did not request an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claimed that he would be harmed by supporters of the Awami League (“AL”) and a moneylender (the “Moneylender”) upon his return to Bangladesh.

6.  The Applicant was born in District Brahmanbaria, Bangladesh. He is married with two children. He completed a Bachelor of Arts degree in 1987. He had worked in a bank and the Revenue Department in Bangladesh. From 2005 to 2007, he operated his own fish-breeding business. He was a supporter of the Bangladesh National Party (“BNP”) since 1991 and became an official member of the BNP and Block Secretary in the Block Committee in his village in 2003.

7.  In 2007, he and some seven to eight BNP members were assaulted by a group of 20 to 25 AL supporters. The attack lasted for around 10 minutes. He claimed that the attack was meant as a show of force and that there had been other conflicts between AL supporters and BNP supporters.

8.  The Applicant claimed that his forehead was injured and he bled badly while other BNP supporters suffered mild injuries. He reported the attack to the police. A week later, the police came to his village to investigate the incident. Three to four months later, the complaint was settled by the AL assailants promising to pay the Applicant and the BNP supporters assaulted compensation of 3,000 Taka.

9.  At the time, the Applicant also claimed that he had a separate loan problem in Bangladesh. He had borrowed 200,000 Taka repayable within two years at an interest rate of 6% from the Moneylender for his fish-breeding business. The Moneylender had been the Block Secretary of AL for a long time. His fish-breeding business did not do well and he was not able to pay interest for the first year. He also failed to pay the interest and the principal in the second year. The Moneylender gave him a grace period of two months which was later extended to the end of the year. Still, he was unable to come up with the money. In late 2007, the Moneylender came to his home with two to four people. He was not at home at that time. The Moneylender threatened to abduct his children if he did not pay. The Applicant sent his family to his father-in-law’s place for their safety. He and his family were never harmed by the Moneylender.

10.  Since AL came to power in 2008, their aggression against BNP intensified. They did not allow BNP to hold any party meetings and rallies and did not allow the Applicant to express his views on social and political issues freely. Because of his problem with AL and the Moneylender, the Applicant fled to Dhaka in 2010. He did not encounter any problem in Dhaka where he stayed between 2010 to 2012. Then he fled to Hong Kong out of fear for his personal safety.

11.  He did not seek police protection from the harassment by the AL supporters because the police system in Bangladesh was too complicated to allow him to do so and the AL was the ruling party with a good connection with the police. He did not believe internal relocation would be viable because the AL was in power and he was a member of the opposition party.

The finding of the Board

12.  The Board considered the Applicant’s evidence about harassment by the AL supporters unsatisfactory and lacking in logical details. It did not accept his allegations.

13.  In respect of the threat from the Moneylender, the Board found on the basis of the Applicant’s evidence, that on each and every occasion the Moneylender allowed him at his request extension of time to pay. The Moneylender only made oral threats to abduct his children. As the Applicant and his family were never harmed, the Board did not accept that the Moneylender had intention to harm the Applicant or his family.

14.  The Board was not satisfied that the Applicant had established in relation to their conduct complained of that the AL supporters and the Moneylender were state agents acting in an official capacity as required by the definition of “torture” under section 37U of the Immigration Ordinance. It found that the Applicant had failed to discharge the burden of proving that there are substantial grounds for believing that he would be in danger of being subjected to torture or that the ill-treatment he sustained attained a minimum level of severity as to constitute torture, cruel, inhuman or degrading treatment or punishment.

15.  The Board also found that the threat by the Moneylender arose out of a private dispute between the Applicant and the Moneylender. It was not made for a reason protected by Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

16.  It was the Applicant’s evidence that he did not seek police protection because of his belief that such protection would not be forthcoming. However, it was also his evidence that the police did investigate his complaint and he obtained a settlement from the AL assailants. The Applicant provided no evidence that the police or authorities deliberately did not do anything to assist him. The Board also accepted the Country of Origin Information (“COI”) that the government of Bangladesh provided reasonable protection to its citizens.

17.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish his claims for protection under any of the four applicable grounds under the USM and dismissed his appeal against the Director’s Notices.

The applicable legal principles

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 ground of judicial review in his Form 86. The ground he advanced in his supported affirmation is that if returned to Bangladesh he would be killed by the AL people because of his affiliation with the BNP and by the Moneylender because he had defaulted repaying his loan owed to the Moneylender. In essence, he was seeking to challenge the finding of fact by the Board under the guise of judicial review.

Discussion and conclusion

20.  Having rigorously examined the Board’s Decision, the Applicant’s grounds for application, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and quoted relevant precedents in support of its Decision. 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 decisions in the Notices. It correctly identified the factual and legal issues raised in the claims. The Applicant’s claims are founded on his fear of harm by the AL supporters and the Moneylender. The Decision of the Board was based on its assessment of the Applicant’s credibility and his risk of harm. The Board had carefully weighed the evidence and assessed the Applicant’s credibility. The Board found him incredible in respect of the allegations against the AL supporters. It accepted his evidence in respect of the threats from the Moneylender. It was on that basis that the Board found that there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds.

21.  The Board’s Decision is a finding of fact which is 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 is utterly without fault. There are no errors of law in its Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board observed a very high standard of fairness. Its Decision did satisfy the enhanced Wednesbury test. Having considered his grounds for application, the Court was satisfied that the Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review. For the above reasons, leave to apply for judicial review was 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

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