MD ALL MAMUN CHOWDHURY SHAMIM AND OTHERS v. TOTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1784/2019

[2021] HKCFI 2087

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1784 of 2019

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 Applicants in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicants (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicants’ application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 6 June 2019 (the “Decision”).    

2.  The 1^st and 2^nd Applicants are Bangladeshi nationals.  The 1^stApplicant is the husband of the 2^nd Applicant.  At the hearing, leave was granted for their son to be joined as the 3^rd Applicant.

3.  The 1^st Applicant was arrested on 15 June 2009 for being an illegal immigrant.  He lodged a torture claim on 18 June 2009.  His claim was rejected on 18 May 2012.  His appeal against the decision was also rejected on 29 November 2013.  On 3 April 2017, he was informed that his case would be reviewed under the Unified Screening Mechanism (“USM”) on all applicable grounds other than the Torture Risk ground, namely: BOR 3 Risk[1]; Persecution Risk[2] and BOR 2 Risk[3].  A screening interview was conducted on 5 June 2017.  By a Notice of Decision dated 13 June 2017, the Director of Immigration (the “Director”) rejected his claim.

4.  The 2^nd Applicant married the 1^st Applicant over the telephone on 8 April 2015, while she was in Bangladesh and the 1^st Applicant was in Hong Kong.  The marriage was recognized under Islamic law in Bangladesh.  She came to Hong Kong on 12 May 2016 to take up employment as a foreign domestic helper but she never reported to duty and she became an over-stayer two weeks after her arrival.  On 27 February 2017, she gave birth to a son, who is now the 3^rd Applicant. She raised claims for non-refoulement protection for herself and the 3^rd Applicant. A screening interview was conducted on 8 September 2017.  Their non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism, namely: Torture Risk[4]; BOR 3 Risk; Persecution Risk and BOR 2 Risk.    By a Notice of Decision dated 19 September 2017, the Director of Immigration (the “Director”) rejected their claims.

5.  All three Applicants appealed to the Board against the decisions of the Director in the respective Notice of Decision.  Their appeal was dismissed by the Decision of the Board dated 6 June 2019.  The Applicant now seeks to apply for judicial review of the Decision.

The Applicants’ case

6.  The 1^st Applicant had been a member of Jatiotabadi Chatra Dal which is the student wing of Bangladesh Nationalist Party (“BNP”).  He and his family are supporters of BNP.  At the time, BNP was in power.  He was involved in promoting BNP to the general public in Gopalgonj and attending rallies and meetings organized by his party leader.  He became a target for attack by the opponent political party, Awami League (“AL”).  Around 2005/2006, there was a group conflict between supporters of the two parties in Gopalgonj. The president of Chatroleague, the student wing of AL, was killed in a fight between the two parties in which the 1^st Applicant was present. 

7.  In 2007, AL came to power.  Fearing that AL would take revenge against him for his long-term support of BNP in Gopalgonj, the 1^st Applicant quit from the election campaign for BNP.  On 17 November 2008, he left Bangladesh for Vietnam ahead of the 2008 election.  From there, he went to Mainland China and then sneaked into Hong Kong.

8.  In 2009, the 1^st Applicant learned that his brother was attacked by AL members and one of his legs was almost severed.  His brother then fled to settle in Singapore in 2010/2011. 

9.  The 1^st Applicant married the 2^nd Applicant on the phone in 2015.  When AL members found out about the marriage, they threatened to kill her.  The 2^nd Applicant overheard a conversation between the 1^st Applicant’s father and her father that AL members went to the 1^st Applicant’s father’s house to look for her and then vandalised the house.  She fled to her maternal grandfather’s house in Pokhara and stayed there until 30 October 2015.  Then she went to Dhaka to stay with the 1^st Applicant’s sister.  On 12 May 2016, the 2^nd Applicant left Bangladesh to come to Hong Kong to join the 1^st Applicant.

Finding of the Board

10.  The Board found the 1^st and 2^nd Applicants were not honest or credible witnesses.  It found inconsistencies between the account of events given by the 1^st Applicant and that given by the 2^nd Applicant.  It considered their accounts lacked reasonableness.  It is inherently incredible.  The Board wondered why the AL members were determined to harm the 2^nd Applicant who was 1^st Applicant’s newly wedded wife, but not the 1^st Applicant’s parents; and why after the 1^st and 2^nd Applicants had come to Hong Kong, none of their family members were attacked by AL members, even though both Applicants claimed that their enemies still visited their families and demanded to know their whereabouts.  The Board could find no evidence that the 1^st and 2^nd Applicants faced harm in other part of the country.  It found there is no risk of serious harm against the Applicants and any such fear is not well-founded.  The Board also considered it would not be unduly harsh to expect the Applicants to relocate within Bangladesh to avoid the feared harm and risk.

Grounds for judicial review

11.  The 3^rd Applicant does not have a case on his own.  His case stands and falls with the 1^st and 2^nd Applicants’.  The Applicants have not advanced any grounds in their application for leave to apply for judicial review or in their supporting affirmation.  At the hearing, the purpose and scope of judicial review were explained to the Applicants.  Repeated attempts were made to solicit from them the grounds of their application.  The 1^st Applicant took the view that all that was required was to join the 3^rd Applicant in his application, everything has been written down in the documents and they are entitled to stay because they have problems in Bangladesh.  In the absence of specific grounds of application, the Court could only focus on the usual challenges in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

12.  The essence of the Applicants’ complaint is that they disagree with the finding of the Board that it is safe for them to return to Bangladesh.  In effect, they are seeking to challenge the Board’s finding of fact that they would not face any real harm or risk if they are returned to Bangladesh and that in any event it would not be unreasonable to expect them to relocate elsewhere in Bangladesh to avoid the harm or risk if these are real.  The function of the court in judicial review is not to re-assess the non-refoulement claim 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 scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board’s conclusion was utterly without fault.  There were no errors of law, procedural unfairness, unreasonableness or irrationality in its Decision which could be regarded as procedurally unfair, Wednesbury unreasonable, or irrational.  The Applicants’ claims were not reasonable arguable.  There was no realistic prospect of success. 

Conclusion

22.  Accordingly, the Court allowed the 1^st and 2^nd Applicants’ application to join the 3^rd Applicant in their proceedings but refused their application for leave to apply for judicial review.

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 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]  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