DHALI IMAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 734/2023

[2024] HKCFI 2840

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 734 of 2023

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 be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 16 May 2023 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 4 May 2023 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 19 April 2021 (the “Notice”).

2.  Previously, the Applicant had filed an affirmation with the Court on 28 February 2024 to withdraw his leave application because all of his problems in Bangladesh had been resolved, his mother was very sick and he wanted to go back to his home country as soon as possible.  However, about two weeks later on 12 March 2024, he filed another affirmation seeking to reopen his leave application because his family and friends told him that his problems in Bangladesh had not been resolved.  The Court allowed his application to reopen and fixed a date for hearing his leave application. 

3.  The Applicant is a Bangladeshi national, now aged 42.  He entered Hong Kong illegally on around 13 February 2020.  He surrendered to the Immigration Department on 23 April 2020.  On 2 June 2020, he raised a non-refoulement claim.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 2 Risk[2], BOR 3 Risk[3] and Persecution Risk[4] grounds.  His claim was rejected by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision.  He now seeks leave to review that Decision.

The Applicant’s case

4.  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 claims he will be at risk of being harmed or killed by Mullah, a member of the youth wing of the Awami League (“AL”), or his subordinates, upon his return to Bangladesh.

5.  The Applicant was born and raised in Village Dhali Kandi in Bangladesh.  He had formal education up to Class 11.  He operated a cosmetic shop in Bangladesh from 1998 to 2008 and then worked in a wall-painting company in Bahrain from 2009 to 2016.  His wife, son, parents, and three siblings are living in Bangladesh.

6.  In 2004, he became the general secretary of the Jubo Dal (the youth wing) of the Bangladesh Nationalist Party (“BNP”) at the Union level for a term of two years.  From 2007 to 2009, he was the Vice President of the Jubo Dal at the District level. 

7.  In early 2008, Mullah was awarded a tender for a road construction project within the Applicant’s district.  Mullah was a member and office holder of the Jubo League (the youth wing) of the AL at Central level.  The Applicant raised objections to the sub-standard quality of work by way of a personal letter to Mullah.

8.  One week later, Mullah called the Applicant and threatened him saying “Let the work be continued the same way as it has been done; otherwise you would face problems.”  The Applicant complained to a leader of the AL.  That leader refused to listen to him and told him not to cause further obstruction to the project.  On the subsequent two days, Mullah called him threatening to kill him and burn down his shop.

9.  At midnight on the next day, about 10 unknown males led by Mullah arrived at the Applicant’s shop and attacked him with wooden sticks and axe handles.  The Applicant suffered a fracture on his wrist and had bruises all over his body.  He ran to his friend’s home about one kilometre away for assistance.  His friend called a private doctor and treated him.  He later found that his shop had been burned down.  He made a report to the police station, but the police took no action.  He was unable to produce a copy of the First Information Report because it is not in Hong Kong.

10.  Then, Mullah filed a false claim with the police against the Applicant accusing him of forcibly occupying his farmland located at a neighbouring village.  The police delivered a written notice of the complaint to him at his home and searched for him in his home village and the surrounding areas.  His friend, who is a police officer, advised him not to explain or defend himself at the police station because he would not be given a fair chance to do so.  He also received information from the BNP that the AL was coming to catch him and hand him over to the police.

11.  The Applicant consulted a senior member within the BNP who told him to stay low and quiet, otherwise there may be adverse impacts on him or the BNP.  To avoid the police and people from the AL, the Applicant relocated to Madaripur in Dhaka in January 2009.  In March 2009, he left Dhaka to take up employment in Bahrain.

12.  He returned to Bangladesh in October 2016 (seven and half years later) and stayed at his parents’ home.  Two days later, he learnt from his cousin, who worked in the police station, that the police and people from the AL were looking for him.  On the third day, he and his wife relocated to Jatrabari in Dhaka and stayed there until December 2018.

13.  In late 2018, his cousin told him that Mullah had filed another false claim against him alleging he was an accomplice in a murder case.  Subsequently, the police delivered a written notice of the complaint to him at his parents’ home.  His cousin read the notice to him over the phone.  In December 2018, the Applicant and his wife relocated to Sylhet and stayed there until June 2019 when his cousin informed him that Mullah knew his whereabouts.  Then, they relocated to Mirpur in Dhaka.  On 4 February 2020, the Applicant fled to Mainland China and then sneaked into Hong Kong, while his wife and son went to stay with his parents in-laws in Chotokrishna Nagar. 

14.  On 17 February 2021, his wife told him that the police and people from the AL were still looking for him.  He does not believe the police and authorities in Bangladesh could protect him, as Mullah is a member of the AL, which is the ruling political party in the country.  He also does not believe internal relocation viable because the police, Mullah and the AL could locate him in Bangladesh through their powerful network. 

The finding of the Board

15.  The Applicant testified before the Board.  He claimed for the first time that he had led 50 to 60 villagers to the road construction site to protest against the sub-standard work, which resulted in suspension of the roadwork.  He said that incident caused animosity between him and Mullah.  While the Board attached credence to that first time allegation and to his evidence about his positions in the Jubo Dal, it doubted Mullah would still be seeking revenge against him after having assaulted him and burnt down his cosmetic shop fifteen years ago.  The Board also saw no reason why the Applicant would remain a target of Mullah when he no longer holds any position in the Jubo Dal or in the BNP since 2009.

16.  The Board noted a large number of discrepancies between the Applicant’s testimony and his evidence in his NCF.  In his NCF, he alleged that Mullah led ten unknown males whom he had never met to assault him and burn down his shop.  But at the screening interview, he said two of the ten men were known to him and helped him to escape that night.  In his testimony, he further departed from the NCF and said Mullah only led seven men to assault him.

17.  The Board had doubts about the Applicant’s claim regarding the first false case of wrongful occupation of land made against him.  It is a civil claim for which the police would not be involved.  As the Appellant had left Bangladesh for seven years between 2009 and 2016, the alleged claim could not be established.  Even if this claim is genuine, it would not be a life threatening matter.

18.  As for the second false claim, the Applicant said in the NCF that he had never seen the police notice about the second false case which was served on his parents while he was in Jatrabari and it was his cousin who read the contents to him over the phone.  But in his oral testimony, he was adamant that he had seen the notice and mentioned some particulars about the case as stated in the notice.  As he claimed he relocated to Jatrabari, Sylhet and Mirpur between 2016 and 2020, he could have no opportunity to see the notice.  He said he could not produce the two notices which were kept by his mother and were lost.  The Board could not understand why he did not ask his cousin who worked at the relevant police station to obtain a copy of the notices.

19.  Apart from the inconsistencies mentioned above, the Board noted that as the Applicant and his family were living in Jatrabari, Sylhet and Mirpur in Dhaka between 2016 and early 2020, he has a perfect alibi to show to the authorities that he was not in the neighbourhood when the alleged murder took place.  Besides, the Board had doubts about the veracity of that claim because if he was wanted for murder, he would have been arrested at the airport when he departed Bangladesh for China in 2020.  

20.  While the Board accepted the Applicant’s evidence about his family background, his political profile and the alleged cause of animosity, because of the inconsistencies in his evidence, lack of supporting documentary evidence and inherent improbability as mentioned above, it found his claim of risks from Mullah and people from the AL in his home area to be far-fetched and fanciful; and his claim of the persecution from the police exaggerated and incredible.  

21.  The Board also found on the basis of authoritative and credible country of origin information (“COI”) that though Bangladesh may not be completely free from corruption, there are objective indications that the government has taken practical steps to maintain public order and safety in its jurisdiction.  It found adequate state protection available.  It also found as an able-bodied person, the Applicant could safely relocate to Dhaka or other big cities to avoid the perceived risks of harm from Mullah and the people from the AL, which were localised within his home area.

22.  On Persecution Risk ground, the Board found that Mullah and the people from the AL were not state actors when ill-treating the Applicant.  It also found that the Applicant’s dispute with them had nothing to do with race, religion, nationality, membership of a particular social group or political opinion.  Hence, the risk of ill-treatment from them did not fall within the protection of 1951 Convention relating to the status of Refugees and its 1967 Protocol as to entitle him to protection under this ground.  In any event, state protection would be available to prevent the risk of harm.

23.  As for BOR 2 Risk ground, the Board found there was nothing to suggest that the Applicant would be deprived of his life by the Bangladeshi government or that his life would be threatened by a risk targeting him personally.

24.  As for BOR 3 Risk ground, the Board did not accept that the Applicant had suffered injury of the requisite level of severity to qualify as torture, cruel, inhuman, degrading treatment or punishment as to suggest that he would be at such risk of such harm if refouled.

25.  As for Torture Risk ground, the Board found there was no involvement by any public official or person acting in an official capacity in the alleged ill-treatment of the Applicant.  It was also not his case that there was any acquiescence by the state in inflicting the ill-treatment on him or was there any consistent pattern of gross, flagrant or mass violation of human rights.  The claimed ill-treatment did not meet the definition of “torture” under section 37U(1) of the Immigration Ordinance as to entitle him to protection.

26.  Applying the law applicable to non-refoulement proceedings to the above finding, the Board found that the Applicant is not entitled to protection under any of the four applicable grounds under the USM.  Hence, it dismissed his appeal and affirmed the decision of the Director in the Notice.

Legal principles applicable to judicial review

27.  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.

Grounds for judicial review

28.  The Applicant’s grounds for judicial review as stated in the Form 86 revolve around procedural unfairness in the following respects:

(1)  the Board had unlawfully fettered its discretion by refusing his appeal on the ground that he did not meet the requirement;

(2)  the Board acted in a procedurally unfair manner in dealing with his appeal;

(3)  the Board’s decision to refuse his appeal was unreasonable or irrational in the public law sense or is the result of procedural errors or unfairness; and

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant.

In addition, under the heading of “Background of the Applicant”, he made the following complaints which may be regarded as grounds of judicial review:

(5)  he was not given an opportunity to keep forward his submissions in an oral hearing nor was he invited to make written submissions; and

(6)  the Board significantly relied on source of news which is not credible, not officially recognized, hearsay or outdated.

Ground (1)

29.  This ground cannot be a valid ground.  If an applicant did not satisfy the requirement for non-refoulement protection, the Board has no discretion to exercise but to uphold the decision of the Director in the notice and dismiss his appeal.  The real question is whether the Decision of the Board is reviewable for having committed errors of law, procedural unfairness or irrationality in its Decision.  The Court will consider these issues in its overall scrutiny of the Board’s Decision. 

Grounds (2) to (4)

30.  Grounds (2) to (4) are lacking in particulars.  When he was invited to give particulars, the Applicant declined saying that everything is written in the Form 86 and supporting affirmation and he had nothing to add.  In the absence of particulars, the Court could only focus on the usual challenges in judicial view, namely, errors of law, procedural unfairness or irrationality in the Decision.

Ground (5)

31.  Under Ground (5), the Applicant complains that he was only asked to write down the grounds of his appeal but was not allowed to make submissions.  This ground is flatly contradicted by the instructions in the NOA.  The fourth and fifth bullet points on page 1 of the NOA reads:

“ It is important that you include ALL information you wish the Board/Adjudicator to consider in this Notice as you may not be allowed to submit further information subsequently unless with the permission of the Board/Adjudicator.

If you need more space to fill in your information, you should do so on additional sheet(s) of paper by indicating clearly the section to which the information refers.”

By these instructions, the Applicant should understand that he is required to put in all information which he wished the Board to consider and to use additional sheets of paper to do so, if necessary.  The information is not limited to grounds of appeal and may include submissions.  There are no limits as to the volume of information he may submit. 

32.  The Court noted that towards the end of the hearing (at 03:10:20 hour), the Board had asked the Applicant if he had anything to add and invited him to make conclusion remarks.  He replied that the Board had questioned him about whatever he wanted to say.   Obviously, he had the opportunity to make submissions.

33.  The Applicant also complains that he had no opportunity to keep forward his submission.  He said the appeal was conducted very fast.  The hearing was completed within 45 minutes.  The questions were literally fired at him.  Before he could answer a question, another question was asked.  In view of the allegations made, the Court called for the audio recording of the hearing and listened to the entire course of the proceeding.

34.  The proceeding lasted three hours and twenty-two minutes, not about 45 minutes as the Applicant alleged.  It was an exceptionally long hearing.  The proceeding progressed very slowly.  Except for a few occasions, the adjudicator spoke slowly and so did the interpreter. There were gaps between each piece of conversation.  These aspects of the complaint are clearly gross exaggerations.  However, there were a few occasions when the adjudicator asked questions before the interpreter had finished the interpretation and she did so in a raised voice.  But, having regard to the questions and the circumstances the Court is satisfied that the adjudicator did not do so in an oppressive manner, but did so to control the Applicant so that he answered what he was asked and did not to go astray to irrelevant matters. 

35.  The Court also noted that the adjudicator spent an hour asking questions about the protest led by the Applicant, which was a new issue raised by the Applicant.  The questions revolved around the legality or utility of the protest which seemingly suggested that Applicant was to blamed for delaying the progress of the works and for taking the law in his own hands.  With respect, the adjudicator had gone astray.  Even if the protest was unlawful, it could not justify Mullah to, using the adjudicator’s own words, take the law in his own hands by threatening the Applicant with his life and burning down his shop and assaulting him (according to the Applicant’s case). The issue in this appeal was, as the adjudicator said, whether someone was threatening to harm the Applicant.  Fortunately, this blemish had no impact on the Decision as the adjudicator accepted the Applicant’s evidence about the protest but rejected his evidence about the threat as incredible.

36.  There is no substance in this ground.

Ground (6)

37.  As for Ground (6), the Applicant could not identify the news which he complained of or the source which he alleged was hearsay, outdated, not credible or not officially recognised.  He alleged that the news were manipulated by the government, but could offer no particulars or supporting evidence.  The COI relied on by the Board are all from authoritative and credible sources, including non-Bangladesh official sources, such as The Australian Department of Foreign Affairs and Trade, The United Kingdom’s Report of a Home Office Fact-Finding Mission, The State Department of the United States.  There is no reason to doubt the reliability of these news and independency of these sources.  This complaint is a mere allegation without substance.

An overall scrutiny of the Decision

38.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this 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. The Board carefully analysed and weighed the Applicant’s evidence.  It tested his evidence against common sense and inherent probability.  It found part of his evidence as credible and part as incredible and exaggerated.  It gave full reasons for its assessment.  Likewise, it considered the COI and found adequate state protection available and internal relocation feasible.  Despite the unfavourable view it formed of the Applicant’s credibility, the Board assessed his claim on the basis of the case as he asserted.  It was on the above basis that the Board found the Applicant’s claim of risk of harm from Mullah and people from the AL incredible and exaggerated and the risk of persecution from the police far-fetched, fanciful and incredible.  These are finding of fact solely within the realm of the Board which the Court in an application for judicial review may not interfere, save for errors of law, procedural unfairness or irrationality in the decision.  It then applied the law applicable to non-refoulement protection to the facts it found.  It was on that basis the Board found the Applicant had failed to establish the factual basis in support of his claim under any of the four applicable grounds under the USM.  The Court could detect no error of law 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 Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

39.  For the above reasons, 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