SANJAY SARKAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 598/2019

[2024] HKCFI 1447

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 598 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 the Applicant being absent in open court;

1.   Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and

2.   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 4 March 2019 for leave to apply for judicial review (the “leave application”) of a “decision of Director of Immigration and Adjudicator of Torture Claim Appeal Board date 26.2.2019 AND 25.05.2016”.  He named the “Secretary for Justice on behalf of Director of Immigration” as the proposed respondent in the Form 86.  In his supporting affirmation dated 4 March 2019, he named the Director of Immigration (the “Director”) and the Torture Claim Appeal Board as the proposed respondents.

2.  Examination of the documents revealed that the Applicant entered Hong Kong illegally on 2 October 2012 and was arrested on the same day.  Then, he raised a claim for protection under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was taken to be a torture claim made under Part VIIC of the Immigration Ordinance, Cap 115 (the “Torture Claim”).  His Torture Claim was dismissed by the Director on 2 April 2013.  His application to appeal that decision out of time was refused.  On 10 March 2014, he raised a non-refoulement claim.  His claim was assessed under all applicable grounds under the Unified Screening Mechanism (the “USM”) other than the Torture Risk ground.  His claim based on BOR 3 Risk[1] and Persecution Risk[2] were rejected by the Director’s Notice of Decision dated 23 August 2016 (the “2016 Notice”) while that based on BOR 2 Risk[3] was rejected by the Director’s Notice of Further Decision dated 7 July 2017 (the “2017 Notice”).  His appeals against the two Notices were dismissed by the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 26 February 2019 (the “Decision”).  Neither the Director nor the Board had made any decision relating to the Applicant dated 25 May 2016.  That date is probable a typographical error.

3.  Pulling all these facts together, it is obviously the Applicant’s intention to seek judicial review of the Decision of the Board dismissing his appeal against the Director’s 2016 Notice and 2017 Notice.  However, while the Decision of the Board is reviewable by judicial process, the decisions of the Director in the Notices are not because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures.  The Director’s decisions in the Notices were superseded by the Board’s Decision and are no longer susceptible to judicial review: Re Moshsin Ali[4]. To give effect to his intention, leave is granted to amend his Form 86 by naming the Board and the Director respectively as the proposed respondent and proposed interested party and the Decision of the Board as the only subject matter of the intended judicial review.  Though he did not mention the Director’s 2017 Notice, as that Notice was the subject matter of the Decision, it will be automatically considered in this leave application.

4.  The Applicant had requested an oral hearing.  A hearing was scheduled and notice of hearing was sent to him by post on 18 April 2024 to his address as stated in his Form 86.  A letter inviting him to make submissions had also been sent to him by post on 21 February 2024.  None of these letters has been returned through the post.  He never informed the court of any change of address.  There is nothing to suggest that he had not received the letter or had moved.  However, he did not appear at the hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly 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 supplementary claim form (“SCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claims that he will be harmed by a Muslim family (known as the Sheikhs) because of his Hindu faith and a land dispute.

6.  The Applicant is a Bangladeshi national, now aged 37.  He was born in Munshigonj, Bangladesh.  He has one brother and two sisters.  The Applicant’s family practised Hindu faith.  He received eight years of education and has working experience making iron grills.  At the material times, he and his family lived and worked in Poddarpara.  There were about 20 Hindu families but about 250 to 300 Muslim families in the same village.  The Muslim families tried to drive the Hindu families out of the village.  One particular Muslim family, the Sheikhs, was the perpetrator behind his troubles in his local village.  The Sheikhs were members of the Bangladesh Nationalist Party and businessmen.

7.  The first incident occurred in early 2007 when four members of the Sheikhs and some 20 to 30 villagers came to his home. They were armed.  They demanded the Applicant’s family to leave and threatened to kill them if they did not.  The Sheikhs destroyed the storerooms of his house but left without harming the Applicant’s family (the “first incident”).

8.  About two or three weeks later, while the Applicant’s family were erecting perimeter fencing pillars around their house, the Sheikhs and about nine to sixteen others came to erect their own pillars and construct boundary walls around the Applicant’s house to force the Applicant’s family out.  When the Applicant started damaging the pillars erected by the Sheikhs, a fight ensured.  The Applicant’s right thumb and left forearm were injured and he bled heavily.  When the Applicant’s father tried to intervene, the Sheikhs beat him as well.  The attack lasted for 15 minutes and the Applicant lost consciousness (the “second incident”).

9.  The Applicant was hospitalised for five days. He felt pain all over his body and he received three stitches on his left forearm.  His father had a plaster cast made for his right forearm.  He and his father made a police report about 15 days after his discharge from the hospital. The police only said they would look into the matter but the Applicant did not hear any updates from the police. 

10.  Then, the Applicant moved to live with his maternal aunt in Munshigonj while the rest of his family moved to the house of the Applicant’s maternal uncle in Sylhet.  The Sheikhs took over his family’s house and farmland. 

11.  The Applicant saw one of the Sheikhs while in Munshigonj.  Thus, he moved to Narayangonj.  After staying for one week, he saw another member of the Sheikhs.  After discussing with his friend, he fled to Singapore in 2007.

12.  On a day in 2009, his father asked the Applicant to return to Bangladesh because his family was living safely in Sylhet.  The Applicant therefore returned to Sylhet in 2009.  However, towards the end of 2009, he learnt that the Sheikhs were looking for him. He did not feel comfortable disguising himself to avoid the Sheikhs.  So he sneaked into Hong Kong with the help of his friend in September 2012.  His last contact with his family was on 25 November 2012 when they told him the problem had worsened and that he should not return to Bangladesh.

13.  The Applicant claims that the Sheikhs targeted him because his father’s properties would pass to him one day.  He does not believe the Bangladeshi police would help him, as most of them were Muslims. He came to that belief because there was no follow up to his police report which showed an unwillingness on the part of the Bangladeshi police to protect him.  He does not believe internal relocation would be feasible because Hindus were often persecuted in Bangladesh.

The finding of the Board

14.  The Applicant testified before the Board.  Despite the Board noted some inconsistencies and contradictions in his evidence, it gave him the benefit of doubt and assessed his claim on the basis that the facts of his claim were true.  It accepted that he came from a Hindu family, that there was some form of attack and discrimination against Hindus in Bangladesh, that the first incident took place and the second incident might have occurred.

15.  The Board however found that the risk of harm to the Applicant upon his return to Bangladesh to be low.  Even according to his evidence, neither he nor his family had been harmed after the second incident. This was despite the fact that his parents had returned to their home village in 2012.  It noted that the Sheikh family did not appear to have any interest in harming his family after they had beaten the Applicant and his father during the second incident and taken possession of his father’s land.

16.  As for the difficulties faced by Hindus in general, after considering authoritative and credible country of origin information (“COI”), the Board noted that “violence…towards Hindus…[was] not uncommon”and that there had been attacks on Hindu houses, business organizations and temples which it described as “concerning”.  However, it considered that there was not enough evidence to show any consistent pattern of gross, flagrant or mass violations of human rights against the Hindus in Bangladesh.  It held that while the Applicant may face harassment, discrimination and low-level violence due to his religious beliefs, the above were unlikely to affect his practising of Hindu faith.  In fact, according to the Applicant, he and his family were able to live in the absence of such harm for most of their lives. There was nothing to suggest that his situation would be any different upon his return.

17.  The Board further held that internal relocation to Sylhet would be viable.  Sylhet had the largest Hindu population among the cities in Bangladesh and it was his evidence that he lived there without incident between 2009 and 2012.  Notwithstanding his evidence that he saw a member of the Sheikh family at Sylhet, it was his own evidence that he was never found by the Sheikhs while in Sylhet.  Further, with his education and working experience in Bangladesh and Singapore, it would not be unduly harsh to expect him to move to Sylhet to avoid the perceived risks of harm from the Sheikhs.

18.  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 the factual basis to support his claims for protection under any of the remaining three applicable grounds under the USM.  Hence, the Board dismissed his appeal against the Director’s 2016 Notice and 2017 Notice.

Legal principles applicable to judicial review

19.  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

20.  The Applicant did not advance any grounds for judicial review in the Form 86.  In his supporting affirmation, he claimed he was a leader of the Hindu community in his village and a worker of the BNP.  He reiterated his fear of being harmed by the Muslims particularly the leaders and workers of Awami League.  He repeated his assertion that he could not relocate within Bangladesh because the Awami League is in power and will help “him” (presumably meaning the Sheikhs) to locate him and harm him.  He was basically repeating the essence of his case before the Board, but added a political flavour by shifting his feared source of harm from the Sheikhs to the leaders and workers of the Awami League which had never been featured in his claim. His newly alleged source of harm was not part of his case before the Board or the Director.  It is not a relevant issue in this leave application.  Thus, the essence of the Applicant’s complaint is that he disagreed with the finding of the Board that it is safe for him to return to his home country.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Bangladesh.  That is not permissible. 

21.  In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

Discussion

22.  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 relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. 

23.  The Board accepted the Applicant’s account on the basis of his evidence and assessed his claim on that basis.  The Applicant could not have any complaint about this finding of primary facts.  On the basis of these primary facts, the Board made further finding of secondary facts, including that the perceived risk of harm to the Applicant on his return to Bangladesh is low, that he could avoid the risks of harm from the Sheikhs by relocating to Sylhet and that it would not be unduly harsh to expect him to so relocate.  These are mixed finding of facts and of the law.  Insofar as they are finding of fact, they 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.  Then, by applying the law applicable to non-refoulement protection to all these facts, the Board found that the Applicant is not entitled as a matter of law to protection under any of the remaining three applicable grounds under the USM. Insofar as any of these findings are mixed finding of facts and of the law, the Court could not detect any error of law in the Decision, or procedural unfairness at any stage of the non-refoulement proceedings or in the making of the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

24.  For the above reasons, leave to amend the Form 86 is granted, and the Applicant’s application for leave to apply for judicial review 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