MD ASAD ALI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1862/2019

[2024] HKCFI 3006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1862 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.

Observation for the Applicant:

Introduction

1.  This is an application by Mr MD Asad Ali (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 17 June 2019 (“2019 Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 7 December 2018 (“2018 DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is a Bangladeshi. He was born on 15 January 1982 in District Rangpur, Bangladesh. He received 14 years of education and had 3 years of work experience.

The Claim

3.  The Applicant relied on the following facts for his claim. He claimed to have joined the political party, the Awami League (“AL”), as an ordinary member in 1996 or 1997. He started helping the AL with their political campaign since the end of 2003. Because of his support for the AL, he had clashes with the rival political party, the Bangladesh Nationalist Party (“BNP”).

4.  The first incident occurred in December 2006 when some BNP members attacked the Applicant and 3 other AL supporters. The assailants told them to stop promoting the AL or they would be killed. They punched the Applicant and the other AL supporters for two to three minutes and fled the scene when other villagers noticed their action (“1^st Incident”). It took the Applicant about 1.5 months to recover.

5.  The second incident occurred about 3 months after the 1^st Incident. About 10 to 12 BNP members told the Applicant and his friends (who were also AL supporters) to stop supporting the AL or they would be harmed. The BNP members did not attack the Applicant (“2^nd Incident”).

6.  The third incident occurred on about 13 May 2007 when the Applicant was beaten by a group of 10 to 12 BNP supporters. They were armed with bamboo sticks and iron rods, and they beat him until he lost consciousness (“3^rd Incident”). The Applicant was hospitalized for about a week.

7.  The Applicant learnt from his co-workers that some BNP members had asked for his whereabouts and vowed to kill him. He fled to Dhaka City after being discharged from the hospital. He hid there for 2.5 months before leaving for Hong Kong via China.

8.  In 2010, the Applicant’s friend informed him that BNP had framed him for murder or attempted murder and he had become a wanted person in Bangladesh. He learnt that his two brothers had also been falsely accused of crimes because of the Applicant’s involvement in the AL.

9.  In 2014, the Applicant learnt that some BNP people had burnt down his house in Bangladesh. His father was beaten up by the BNP people and died a few months later due to his injury. His mother also died a few months thereafter.

10.  The Applicant claimed that he would be harmed or killed by the BNP people if he were returned to Bangladesh.

Procedural history

11.  The Applicant sneaked from China into Hong Kong on 23 November 2007 and was arrested by the police on the same day. He lodged a claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 8 December 2007 (“CAT Claim”).

12.  The CAT Claim was dismissed by the Director’s decision dated 20 June 2012 (“2012 DOI Decision”). His appeal against the 2012 DOI Decision was dismissed by the Board on 23 July 2012 (“2012 Board’s Decision”). His application for leave for judicial review against the 2012 Board’s Decision was dismissed on 25 January 2013 in HCAL 100/2012. Thus, the CAT Claim was concluded.

13.  By a written representation of 7 November 2013, the Applicant lodged the Claim.

14.  The Director had considered the Claim on the remaining applicable grounds (other than the CAT Claim) under the United Screening Mechanism (“USM”), namely:

(a)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2 risk”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(c)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

15.  By the 2018 DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the 2019 Board’s Decision, the Board affirmed the 2018 DOI Decision. The Board rejected and dismissed the Appeal.

16.  On 4 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the 2019 Board’s Decision. The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Director and the Board as the proposed respondents.

17.  On 31 July 2024, the Applicant filed another affirmation applying to withdraw this intended judicial review application stating that all his problems had finished and that he wanted to go back to his home country (“Withdrawal Application”).

The 2018 DOI Decision

18.  The Director noted that the low intensity and low frequency of past ill-treatment from the BNP people was indicative of a small future risk of harm upon the Applicant’s return. The Director did not accept that the Applicant’s claimed risk of being harmed or killed by the BNP people was real and foreseeable and there was nothing indicating that the Applicant’s life was in real danger. The Director assessed that the Applicant’s perceived harm upon his return to Bangladesh was not as imminent and substantial as the Applicant asserted.

19.  On the issue of state protection, the Director did not accept that reasonable state protection would not be available to the Applicant upon his return to Bangladesh. The Director found that even if the Applicant was arrested and put to the court for the false murder charge against him, the Applicant would be given a fair trial.

20.  The Director further found that internal relocation would be viable to the Applicant. If the Applicant moved to Chittagong or Khulna, the BNP people would have great difficulty in locating him. After considering his age and work experience, the Director found that it would not be unduly harsh to expect him to relocate to those areas and lead a normal life.

21.  For the reasons set out in the 2018 DOI Decision, the Director rejected the Claim.

The 2019 Board’s Decision

22.  The Board found that the Applicant had not made out a case in respect of any of the persecution risk, the BOR 2 risk or the BOR 3 risk.

23.  The Board found that the Applicant had failed to establish that he had a well-founded fear that he would be subjected to persecution on account of race, religion, nationality, membership of a particular social group or political opinion, if he was refouled to Bangladesh.

24.  The Board found no evidence of the Applicant having suffered serious harm or serious injury in the Incidents. The Applicant’s past experience did not amount to ill-treatment for the purpose of the BOR 3 risk and there was no suggestion that the Applicant’s rights under the BOR 2 would be violated.

25.  The Applicant submitted some papers said to be on the Bangladeshi court proceedings as evidence that he had been framed in Bangladesh. The Board considered the papers and found that there was no evidence to support the assertion that the alleged false murder charge against the Applicant was instigated by the BNP. The Board noted that the papers indicated that the proceedings were being conducted in a lawful manner and there was no evidence adduced to suggest that the case would not be fairly handled by the Bangladeshi court.

26.  The Board did not find fault with the Director’s finding that criminal proceedings had been instituted against persons connected with the party in power and state protection would be available to the Applicant.

27.  If the Applicant faced a real or genuine risk of harm from the BNP people, the Board found that such risk was confined to the local area where the Applicant and his family had lived. The Board noted that in the past, the Applicant was able to live in Dhaka and Chittagong peacefully. The Board did not believe that the BNP people in the Applicant’s home area had any interest in locating the Applicant outside of the local area. With his education, experience and age, it would not be unreasonable to expect the Applicant to relocate elsewhere in Bangladesh.

28.  The Board found that the Applicant had failed to establish his case on all remaining applicable grounds (other than the CAT Claim) under the USM. The Board affirmed the 2018 DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

29.  In a judicial review, the court does not step into the shoes of the decision makers.

30.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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”.

31.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

32.  The Applicant did not advance any grounds for his intended judicial review in the Form 86. In the Supporting Affirmation, the Applicant only stated that: “I would like to reject and [set] aside the decision made by immigration department they disregard the danger and threats I face in my country shold [sic] I be deported”. He then produced the 2019 Board’s Decision as exhibit to the Supporting Affirmation.

33.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the 2019 Board’s Decision in affirming the 2018 DOI Decision, or in what way was the 2019 Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

34.  Having rigorously examined the 2019 Board’s Decision and the 2018 DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the remaining applicable grounds (other than the CAT Claim) under the USM; the burden of proof and standard of proof; correctly identified the issues and observed very high standards of fairness.

35.  The Board was of the view that there was not a real risk that the Applicant would face any of the proscribed forms of harm should he return to Bangladesh. Furthermore, reasonable state protection was available and internal relocation was viable to the Applicant.

36.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the remaining applicable grounds (other than the CAT Claim) under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such finding involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the 2019 Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The 2019 Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The 2019 Board’s Decision is without fault. The proposed judicial review has no realistic prospects of success.

The Withdrawal Application

37.  The Applicant subsequently filed the Withdrawal Application on 31 July 2024 applying to withdraw his intended judicial review. He stated that all his problems had finished and he wanted to go back to his home country.

38.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of his own volition.

39.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

40.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

41.  In the premise and having considered the 2019 Board’s Decision and the 2018 DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this 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