KAZI AFSAR UDDIN AHMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2712/2019

[2023] HKCFI 742

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2712 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 oral submissions by the 1st, 2nd and 3rd Applicants in open court;

1.  Leave granted for the 2^nd and 3^rd Applicants to be joined respectively as the 2^nd and 3^rd Applicants in the application for leave to apply for Judicial Review; and

2.  Leave for the 1^st, 2^nd and 3^rd Applicants to apply for Judicial Review refused.

Observations for the Applicants:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 17 September 2019 by the 1^st Applicant for leave to apply for judicial review (“leave application”) of the decision (the “Decision”) of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 29 August 2019. By that Decision, the Board rejected the three Applicants’ appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 31 January 2018 (the “Notice”) refusing their claim for non-refoulement protection. However, the leave application was made by the 1^st Applicant on his own behalf only. Hence, leave is granted for the 2^nd and 3^rd Applicants to be joined respectively as the 2^nd and 3^rd Applicants in this application.

2.  The 1^st Applicant is a Bangladeshi national. The 2^nd Applicant is an Indonesian national. They married according to Muslim custom in July 2009 and formally registered their marriage on 29 November 2012. The 3^rd Applicant is their daughter born on 5 December 2009.

3.  The 1^st Applicant came to Hong Kong on 10 November 2005 on the strength of his Bangladeshi passport. He was arrested on 30 December 2005 for overstaying. On 10 January 2006, he filed a torture claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”). His CAT Claim was rejected by the Director on 8 May 2012. His appeal against the decision of the Director was rejected by the then Petition Team on 21 June 2012. On 6 July 2012, he applied by affirmation for leave to apply for judicial review of the decision of the Petition Team under HCAL 86/2012. He was granted legal aid on 27 September 2012 to prosecute his leave application. However, his legal aid certificate was discharged on 21 December 2012. He made yet another legal aid application which was refused on 5 February 2013. On 22 February 2013, P. Li J refused his leave application. The CAT Claim decision as against him is now final.

4.  The 2^nd Applicant came to work in Hong Kong as a domestic helper on 13 November 2006. She overstayed after her contract was prematurely terminated. She surrendered to the Immigration Department on 5 October 2009. After giving birth to the 3^rd Applicant, she raised a CAT Claim on behalf of herself and the 3^rd Applicant. Their CAT Claim was rejected by the Director on 22 May 2012. Their appeal against the decision of the Director was rejected by the Petition Team on 21 June 2012. On 3 July 2012, they applied for leave to apply for judicial review of the decision of the Petition Team under HCAL 82/2012. Their application was rejected by A. Chan J on 18 February 2013. Thus, the CAT Claim decision as against them is now final.

5.  With the introduction of the Unified Screening Mechanism (“USM”), the Applicants made a joint claim for non-refoulement protection by way of written representations dated 12 April 2013. They were legally represented by the Duty Lawyer Service. Their claim was assessed on all applicable grounds other than the Torture Risk ground which had been considered under their CAT Claims, namely: BOR 3 Risk[1]; Persecution Risk[2] and BOR 2 Risk[3]. By his Notice, the Director rejected their claim. The Applicants appealed. Their appeal was dismissed by the Board’s Decision. They now seek leave to apply for leave for judicial review of the Board’s Decision.

6.  As the 3^rd Applicant is a minor, the 1^st Applicant who represented her had been advised by letter of this Court dated 4 January 2022 to seek legal representation whether by the Director of Legal Aid or private solicitors. Other than informing this Court that he had applied for legal aid on 1 April 2022, the 1^st Applicant never updated the Court about the progress of his legal aid application. Subsequently, this Court was informed by the Legal Aid Department that his legal aid application had been refused on 17 June 2022. The Applicants had requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered that the lack of legal representation for the 3^rd Applicant was a mere irregularity. An oral hearing was scheduled on 13 February 2023.

7.  At the hearing, the legal principles applicable to judicial review were explained to the Applicants. They all indicated that they understood and confirmed that they had no complaints about error of law, procedural unfairness or irrationality in the Decision. Their answers are inconsistent with the nine grounds of application advanced by the 1^st Applicant on behalf of all the Applicants in his supporting affirmation.

8.  The Court then went through the nine grounds of application with them. Attempts were made to clarify these grounds with the 1^st and 2^nd Applicants. They had no knowledge about the nine grounds and were unable to elaborate. It was obvious that the grounds were prepared by people assisting them in these proceedings. They merely repeated their case and their claimed fear. They said that they were not so concerned about their repatriation and their concern was that the 3^rd Applicant be allowed to stay in Hong Kong as she was born and educated in Hong Kong, is happy in Hong Kong and does not know either of the languages in their home countries.

9.  Despite being a minor, the 3^rd Applicant was invited to address the Court. She is studying in secondary school in Hong Kong. She has no knowledge about the fear claimed by the 1^st and 2^nd Applicants. The thrust of her submission is her language disability if removed to Bangladesh or Indonesia.

The 1^st Applicant’s case

10.  The basis of the 1^st Applicant’s claim is his fear that he would be harmed or killed by members of the Bangladesh Nationalist Party (“BNP”) because of his involvement in a rival political party, namely the Awami League (“AL”). His family has a close bond with the AL and he was a member of the Chhatra League and Bonogram Union, which were student wings of the AL. He was elected as the President of Chhatra League in January 2003 and was involved in activities such as raising funds for poor students and/or promoting the AL. His participation in the AL attracted attention of Abul Khayer and Bipul, who were respectively the president and secretary of Jubo Dal, the youth section of the BNP. At the time, the BNP was the ruling party.

11.  On 3 March 2003, a group of ten to twelve BNP members led by Abul Khayer and Bipul attacked the 1^st Applicant while he was having tea with his friend. Two of the BNP members hit him with hockey sticks while the others beat him. One of them attempted to stab him with a knife. The 1^st Applicant suffered injuries and bled heavily. He fell unconscious and was hospitalized for fifteen days. His father reported the attack to the police, but the police did not accept his complaint under the instruction from a BNP member.

12.  Upon his discharged from the hospital, the 1^st Applicant hid in various places between 2003 and 2005. He claimed that throughout the years BNP members had been to his home looking for his whereabouts and assaulting his close family members. On 21 February 2005, while he was attending a service on International Mother Language Day, he was attacked by BNP members using sticks, poles, hockey sticks, iron rods and “cocktail” bombs. One of the bombs exploded near his leg causing him serious injuries. He was hospitalized for 20 to 25 days. His father again reported the attack to the police but no further action was taken.

13.  Out of fear for his safety, the 1^st Applicant’s father arranged for his flight to New Zealand. However, he was cheated by the agent and ended up in Hong Kong. Despite he rarely contacts his family in Bangladesh, he believes BNP members are still looking for him. He did not consider he could relocate to other parts of Bangladesh.

The 2^nd and 3^rd Applicants’ case

14.  The 2^nd Applicant’s claim is founded on her fear of harm or of being killed by her family because she refused their arrangement to marry her elder brother’s friend, married the 1^st Applicant without their consent and gave birth to the 3^rd Applicant. The 3^rd Applicant’s claim is also founded on the same basis as the 2^nd Applicant’s.

15.  When the 2^nd Applicant returned home towards the end of 2005 on completion of her overseas employment contract, her mother forced her to marry her elder brother’s friend. When she refused, her elder brother hit her with an iron bar and his friend kicked her after she fell to the ground. She moved out of her home to stay with an employment agency until she came to Hong Kong in 2006. Then she developed a relationship with the 1^st Applicant and became pregnant. Presumably, her neighbour from Indonesia who worked in Hong Kong told her family about her pregnancy. When she contacted her family, her elder brother threatened her not to return or he would kill her and her baby. When she later called her mother, her mother endorsed what her elder brother had said. Then she received a statement letter from her mother disowning her. She has not been in contact with her family since around 2012.

16.  The 2^nd Applicant claims that despite a lapse of seven years she is still in fear. She does not consider internal relocation feasible because her elder brother has many friends who work in the police and would help him to locate her if she returns to Indonesia. She claims that she is a fragile person and could not support herself and the 3^rd Applicant, if they are returned to Indonesia.

The Board’s finding in respect of the Applicants’ claim

17.  The centerpiece of the 1^st Applicant’s case is his involvement in the AL and his role as the president of the Chhatra League. However, the Board found numerous inconsistencies in his evidence. The Board could not accept his evidence about his involvement in the AL since 1992 as he was only twelve years old then. His evidence as to whether he was the president of the Chhatra League or Bonogram Union in 2003 is vague and contradicting. He subsequently claimed that he was the president of the Chhatra League. Still, the Board rejected that evidence as the 1^st Applicant was not a student at the time and could not have been elected as president of such a student body.

18.  The 1^st Applicant’s evidence as to the name of the hospital to which he was admitted after the 2005 attack is inconsistent. The Board also found the medical evidence in the form of two letters dated 5 February 2012 and 27 March 2006 from the 1^st Applicant’s treating doctor, Dr Saiful Islam, suspicious. One was written seven years after the attack. The other was written one year after the attack and when the 1^st Applicant was in Hong Kong. Both letters certify that the 1^st Applicant was under the doctor’s treatment from 21 February to 12 March 2005. Though written by the doctor with the same name and professional qualification, the handwriting is different. The two letters are lacking in details such as the injuries suffered and the name of the hospital to which the 1^st Applicant was admitted.

19.  As the 1^st Applicant said he had no problem obtaining visa to stay in India and had relatives in India, the Board was concerned why having moved to India in 2005 to avoid the harm he returned to Bangladesh. The Board also considered his alleged fear speculative because on his evidence he had not contacted his family since 2012 and did not know about the current situation in Bangladesh and if Abul Khayer and Bipul are still residing in Bangladesh.

20.  Having rejected his evidence about the centerpiece of his case, the Board found his evidence incredible. It found that the 1^st Applicant had fabricated his claim in order to extend his stay in Hong Kong. It did not accept his evidence that he had joined the AL (including being the president of Chhatra League), had been attacked in the two alleged incidents in March 2003 and February 2005, had genuine fears of returning to Bangladesh and would be at risk of any harm if he returns.

21.  On the basis of authoritative and credible Country of Origin Information (“COI”), the Board found the 1^st Applicant could avoid the threat by relocating to other areas in Bangladesh. It rejected his argument that he had been disowned by his mother and had no money to relocate.

22.  The Board found significant inconsistencies in the 2^nd Applicant’s evidence which cast doubt on the veracity of her case. These inconsistencies include whether the man whom she was allegedly arranged to marry had also taken part in beating her when she refused to marry him, whether her elder brother had in fact beat her or only tried to strike her, and whether he did so with an iron bar or with a hot iron. Furthermore, there is no medical evidence to support her claimed injuries when she was interviewed by the Immigration Department in 2012. On her own evidence, the 2^nd Applicant had not contacted her family since 2012. She was unable to confirm if her family are alive or are still in Indonesia. The Board could not find any evidence to support her belief that her brother’s friends would help him to locate her in Indonesia. In conclusion, the Board found the 2^nd Applicant was not a credible witness and had fabricated her claims in order to extend her stay in Hong Kong. It rejected her evidence and found that she and the 3^rd Applicant will not face a real risk of any harm from her family, the community, the police or the Indonesian authorities or anyone else for any reason if they were to return to Indonesia now or in the reasonably foreseeable future.

23.  The Applicants are all Muslims. Muslim is the state religion and major religion in Bangladesh. The 1^st and 2^nd Applicants were properly married in accordance with Muslim custom. There is no independent evidence to indicate that they and the 3^rd Applicant will face a real risk of harm or discrimination from the community, the state, the police or anyone in Bangladesh by reason of the 1^st and 2^nd Applicants’ mixed marriage and the 3^rd Applicant being a mixed-race child. Hence, the Board found there is no real risk of the three Applicants facing any harm from the 1^st Applicant’s family, the BNP group, the police, or Abul Khayer and Bipul if they were to go to live in Bangladesh now or in the reasonably foreseeable future.

24.  Muslim is also the major religion in Indonesia. The Board found there is no independent evidence to indicate that the three Applicants will face a real risk of harm from the 2^nd Applicant’s family or discrimination from the community, the state or anyone in Indonesia by reason of the 1^st and 2^nd Applicants’ mixed marriage, the 1^st Applicant’s Bangladeshi nationality, and the 3^rd Applicant being a mixed-race child, if they were to go to live in Indonesia. It is also the 2^nd Applicant’s evidence that the 1^st Applicant could join her to reside in Indonesia, if she and the 3^rd Applicant were to be returned there. On the basis of authoritative and credible COI, the Board found the 2^nd Applicant could relocate to another island in Indonesia for extra safety, if she does not wish to live near her family in Java.

25.  The 3^rd Applicant has not advanced any independent case or child-specific case on her own. Her claim stands or falls with the 1^st Applicant’s if she is to be removed to Bangladesh with her father or with the 2^nd Applicant if she is to be removed to Indonesia with her mother.

26.  Applying the legal principles applicable to non-refoulement protection under the USM, the Board found that the Applicants had failed to prove the factual basis to support their claims under any of the three applicable grounds. Hence, it upheld the Director’s decision in the Notice and dismissed the Applicants’ appeal.

Legal principles applicable to judicial review

27.  The function 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 protection 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[4]. The 1^st Applicant advanced nine grounds of application in his supporting affirmation. They all revolve around these three elements. These grounds are considered below.

(1)  Procedural impropriety (Paragraph 4 of supporting affirmation)

28.  The Applicants complained the Board’s “failure to properly apply para 2 of the United Nations Committee against Torture General Comment No. 2 whereby satisfaction of a National states obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event”. They seemingly suggest that the Board and the Director merely focused on COI reporting positive improvements in human rights protection without exercising due diligence to satisfy itself that the improvements were sufficient and effective.

29.  The more significant COI relied on by the Board in respect of the 1^st Applicant’s claim are the US Department of State 2018 Country Reports on Human Rights Practices: Bangladesh published by the United States State Department and the Country Policy and Information Note Bangladesh: Background information, including actors of protection, and internal relocation published by the United Kingdom Home Office. What was relied on by the Board is the freedom of internal movement for the purpose of assessing feasibility of internal relocation. The two COI reported general freedom of movement within Bangladesh except in the Cox’s Bazar and the Chittagong Hill Tract. The other facts extracted from the COI and relied on the Board are: that Muslim is the state religion in Bangladesh and the major religion in both Indonesia and Bangladesh, the geographical size of Bangladesh and the size of its population and the age requirement for membership in the AL, etc. The COI are from authoritative and credible sources. The information relied on by the Board are not controversial. The Applicants never sought to argue otherwise or produced any contradicting COI. Their complaint about the Board’s failure are mere allegations and not substantiated.

30.  The more significant COI relied on by the Board in respect of the 2^nd and 3^rd Applicants’ claim include the Indonesia: Women Headed Household Empowerment Program published by the World Bank and World Factbook published by the Central Intelligence Agency of the United States. For the same reasons as stated in the preceding paragraphs, the use of these information by the Board is unobjectionable.

31.  The Applicants have not particularized the COI they sought to rely on. There are COI about seriousness of corruption in Bangladesh and about positive improvements. But, little or no weight seems to have been placed by the Board on those COI as the Board’s Decision is not based on state protection. There is no substance in this ground.

(2)  Procedural impropriety (Paragraph 5 of supporting affirmation)

32.  The Applicants complained the Board’s failure to conduct sufficient inquiry into the relevant country of origin conditions and hence failed to consider the 1^st Applicant would face serious risk from the BNP which is the current opposition party. The Board’s finding is that the 1^st Applicant is not a credible witness and has fabricated his claim in order to extend his stay in Hong Kong. It expressly found he was not a member of the AL or the president of Chhatra League, and that he had not been attacked in the two incidents in March 2003 and February 2005, which is the centerpiece of his claim: see paragraphs 17 to 20 above. If he was not even a member of the AL and had no political profile of interest to the BNP as to cause BNP to attack him, inquiry into the COI will not in any way enhance his claim. In effect, this ground is an attack on the finding of fact by the Board which for reasons as explained in paragraph 27 is not permissible.

(3)  Procedural impropriety/irrationality (Paragraph 6 of supporting affirmation)

33.  By this ground, the Applicants complained that the Board failed to give reasons for or provide sufficient basis to support its assessment of BOR 3 risk. The 1^st and 2^nd Applicants’ argument is that they had submitted their documents to and accepted by the Legal Aid Department. That does not substantiate their complaint.

34.  The Board gave reasons for its finding on this issue in paragraphs 214 to 220 of the Decision. Basically, it was after a long and detailed analysis of the evidence in paragraphs 152 to 213 which extended from page 33 to 50 of the Decision that the Board found the 1^st and 2^nd Applicants incredible and had fabricated their evidence for the purpose of extending their stay in Hong Kong. It rejected their evidence and found that they had failed to prove their feared harm and risk of harm. Then, in paragraphs 214 to 220, the Board explained by applying the legal principle applicable to BOR 3 Risk ground to the facts found that the Applicants failed to establish their entitlement to protection under BOR 3 Risk ground. The Board had set out the relevant factual basis and given full reasons for its finding.

(4)  Error or misdirection in law (Paragraph 7 of supporting affirmation)

35.  At this stage of the proceedings, the 1^st Applicant said he was not feeling well in his stomach. He said he had been discharged from hospital and had a follow up appointment. He seemingly wished to seek an adjournment which may pose some inconvenience as two interpreters have to be made available at the adjourned hearing. However, after understanding his gastric problem and before discussing the possibility of an adjournment with him, he indicated that he could continue with the hearing. The hearing continued. At the end of the hearing, he produced a discharge slip from Tuen Mun Hospital showing he was admitted to hospital on 10 October 2022 and had a follow up appointment on 11 March 2023.

36.  The Applicants’ complaint under this ground is that the Board failed to take into account the psychological strain and threats to the 1^st Applicant. The Board had rejected the 1^st Applicant’s evidence about his membership in the AL and presidency in the Chhatra League, the two attacks and the threats. Having failed to prove the threats alleged, it must necessarily mean that there is no psychological strain or stress for the Board to take into account in its assessment of the 1^st Applicant’s claim.

(5)  Procedural Impropriety (Paragraph 8 of supporting affirmation)

37.  The Applicants complained that the Board failed to consider the Applicants’ fear of the BNP. For like reason as given in the above section, the Applicants had failed to prove they had any genuine fear of the BNP for the Board to take into account.

(6)  Procedural Impropriety (Paragraph 9 of supporting affirmation)

38.  The Applicants complained that the Board failed to consider the 2^nd and 3^rd Applicants’ fear if returned to Indonesia. The Board had considered the evidence about the 2^nd and 3^rd Applicants’ harm and risk of harm carefully in paragraphs 194 to 213 of the Decision. Again, for like reason as given in paragraph 30 above, the Applicants had failed to prove they had any genuine fear of harm or risk of harm from the 2^nd Applicant’s family and her elder brother’s friend she was supposed to marry, the community, the state, the police or anyone in Indonesia for the Board to take into account. In addition, both the 2^nd and 3^rd Applicants could relocate to another island away from Java or to Bangladesh with the 1^st Applicant to avoid the harm or risk, if necessary.

(7)  Error/Misdirection in law (Paragraph 10 of supporting affirmation)

39.  The Applicants complained that the Board failed to consider the concept of extended state acquiescence and that the authorities in Bangladesh could not protect them. As the Board found that the 1^st Applicant had not been attacked, the question of state protection or state acquiescence did not even arise.

(8)  Clarification about the AL and Chhatra League (Paragraph 11 of supporting affirmation)

40.  The 1^st Applicant sought to clarify that he was the president of Chhatra League which is the student wing of the AL. The Board had no misunderstanding about his claim to be a member of the AL and the president of the Chhatra League and that Chhatra League is the student wing of the AL. What the Board found is that he was neither. This is a finding of fact based on evidence properly understood by the Board. There is no need for the clarification. In any event, this could not be a ground for judicial review.

(9)  No basis to find the Applicants would not be at risk of cruel, inhuman or degrading treatment or punishment (Paragraph 12 of supporting affirmation)

41.  The Applicants had made a CAT Claim. As explained in paragraphs 3 and 4 above, those claims had been finally determined. Again, it was explained in paragraph 5 above that those claims do not fall within the scope of present claim or the Decision.

(10)  The 3^rd Applicant’s language disability

42.  In the course of their argument in relation to Ground (6), the 1^st and 2^nd Applicants raised the issues of the 3^rd Applicant’s language disability and her nationality which had not been raised by them before the Board. This is a new ground which has no impact on the legality and propriety of the Board’s Decision. Furthermore, given her young age, the 3^rd Applicant would have no problem learning the language and adapting the life style in either Bangladesh or Indonesia with the help of the 1^st and/or 2^nd Applicants. In addition, this Court is aware from COI of Bangladesh and Indonesia that children born by nationals of these countries are entitled to claim their parents’ nationality: see for example, this Court’s decision in HCAL 2357/2018.

Conclusion

43.  There is no substance in any of the Applicants’ grounds of application. However, out of abundance of care, the Court also 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 three applicable grounds under the USM; the issues; the burden of proof and standard of proof; and correctly identified the issues. While the 3^rd Applicant’s claim is basically hinged on the 2^nd Applicant’s and to some extent also on the 1^st Applicant’s, the Board did not consider their claims as if they were one composite claim. It carefully considered the claims of each of the Applicants individually and cumulatively taking into account as well the personal circumstances of each of them. It considered discrimination which is a child specific ground applicable to the 3^rd Applicant. The Board observed a very high standard of fairness. It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the three applicable grounds considered by the Board. Basically, the Board found the 1^st and 2^nd Applicants incredible and rejected their evidence. They had failed to discharge their burden of proving their fear of harm and risks. These are finding of facts which 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, unreasonableness and irrationality. The Court could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational.

44.  For the above reasons, the Applicants’ grounds are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review. Accordingly, 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