MANIK MOHAMMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1506/2019

 [2024] HKCFI 1950

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1506 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 Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 27 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court, the Court fixed a hearing date, which is on 11 March 2024 for him to appear before it.  However, he was absent without prior notice to the Court.  However, it was discovered that the applicant had changed his address.  A new hearing notice was sent to the applicant.

3.  The applicant appeared before the Court on 26 June 2024.

The applicant

4.  The applicant, aged 38, is a national of Bangladesh.  He entered Hong Kong illegally from Mainland China on 9 January 2016 and was arrested by the police on 11 January 2016.  The applicant made a non-refoulement claim on 15 January 2016 on the basis that, if refouled, he would be harmed or even killed by the members from the Awani League (“AL”) because of his affiliation with the Bangladesh Nationalist Party (“BNP”).

5.  According to the applicant, he ran a car rental business in Bangladesh.  His father was a supporter of AL, as were most residents at the applicant’s locality.  However, the applicant started supporting BNP from 2001.  In the vicinity of the national election in December 2008, the applicant campaigned for the BNP candidate in his locality.  He was asked by the AL Youth Wing Chairman to stop participating in BNP activities.  Other AL members also complained to the applicant’s mother and said they would not spare him if AL won the election.

6.  It turned out that AL won the election nationally, but the BNP candidate in the applicant’s locality won.  On the day after the election results were announced, 60 - 70 armed AL members came to the applicant’s home.  The applicant managed to escape through the back door, and they damaged his house and abused his mother.  In 2009, the applicant formally joined the student wing of BNP and became the president in his locality in 2011.  Shortly afterwards, there was another attack to his house, but he managed to escape again.

7.  There were no further problems until the next election.  On 5 January 2014, 100 - 150 armed AL members came to the applicant’s house.  He learnt about their attack beforehand, so he did not return home.  His house, in particular, his bedroom was vandalized as a result.  His mother was also assaulted.  The applicant reported the incident to the police, but they refused to file his case.  Thereafter, the applicant received phone calls from strangers, threatening to shut his business down or they would kill his drivers unless he joined their party.  They also tried to engage the applicant as a driver, but he suspected that they were actually trying to lure him into an assault.  Later on, they even threw a petrol bomb into his pickup truck.

8.  On 4 April 2014, the applicant was supposed to drive passengers to the airport.  At the last moment, he changed his mind and asked one of his drivers to take up the job instead.  Early the next morning, the applicant was informed that the driver was found dead inside the car with his hands tied behind him and a motorcycle chain around his neck.  The applicant believed that he was the target and the driver was killed by mistake.

9.  The applicant immediately fled to Dhaka.  He stayed in a hotel for 1 - 2 days and then at a friend’s house.  While he was at Dhaka, he received phone calls saying that there would be no mistake the next time.  The applicant then relocated to Chittagong, but he suspected that he was being followed.  Feeling insecure, the applicant returned to his hometown and sought help from the Member of Parliament at his locality.  About 5 - 6 days after his return, he was approached by 10 - 12 youngsters at the bus stop.  Luckily someone intervened and the applicant was not harmed (“the bus stop incident”).

10.  The applicant realised that his life was not safe anywhere in Bangladesh. Therefore, he made arrangement to leave the country.  A few days before his departure, his home was attacked by 10 - 15 AL gangsters on motorbike and his mother was also assaulted.  The applicant left for Mainland China on 2 December 2015 and eventually sneaked into Hong Kong on 9 January 2016.  The applicant maintained contact with his mother after leaving Bangladesh, who advised him not to return but to move to other countries to save his life.

11.  The applicant was of the view that he could not seek help from the police because they were corrupt and they only followed orders given by the ruling party.  The applicant also mentioned during his interview with the Immigration Officer that there were false cases filed against him with the police.  He considered internal relocation not viable as well because AL were powerful enough to find him anywhere within the country.

12.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 10 August 2018 (“the Director’s Decision”).

The Director’s Decision

13.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

14.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director was of the view that (i) the low intensity and frequency of past ill-treatment from AL members is indicative of a small future risk of harm upon his return to Bangladesh [19] - [25]; (ii) state protection will be available to him upon his return [26] - [27]; (iii) internal relocation is viable [28] - [34] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [35] - [40], Persecution risk [41] - [46] or Torture risk [47] - [50].

The Board’s Decision

15.  The applicant appealed the Director’s Decision to the Board.  On 21 March 2019, the Board conducted an oral hearing.   

16.  In his Notice of Appeal, the applicant made a new claim that he had been brutally assaulted by the police.  The applicant denied making such a claim initially at the hearing, but later said that he had been beaten by the police once when he was attending a BNP meeting [48].  The applicant also made a claim at the hearing that he was assaulted by the AL youngsters in the bus stop incident [42] - [43] (“the two new claims”).

17.  Having considered the applicant’s evidence, the Board was of the view that the applicant was not a credible witness.  There were significant inconsistencies between various important claims made at different times.  Some of his claims varied as to details, while he also omitted claims at the hearing and raised new ones that he never mentioned before [52].  Apart from the nationality of the applicant, the Board rejected every aspect of his claim, including his involvement with BNP; threats from AL members due to his BNP involvement; his claimed belief that the people who murdered his driver intended to kill him; his reason for fleeing to Chittagong; and his claim to the Immigration Officer that there were false cases filed against him with the police and the two new claims [51] - [71].

18.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk [74] - [78], Torture risk [79] - [84] or BOR 2 or BOR 3 risk [85] - [91].  The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

Application for leave to apply for judicial review of the Board’s Decision

19.  The applicant has filed Form 86 dated 3 June 2019 for leave to apply for judicial review of the Board’s Decision.

20.  The applicant has raised grounds in support of his application in his affirmation and an attachment to Form 86.  I shall summarize those grounds below.

(1)  The Board is in breach of procedural fairness, the reasons being: the Board fettered its discretion by refusing his appeal on the grounds that they did not satisfy the requirement; the Board’s Decision is unreasonable and irrational; the hearing bundle was given to him shortly before the hearing and the majority of the documents are in English, in which he is not proficient.  He did not have enough time to prepare for the hearing and he could not afford interpretation service as he is not allowed to work here and he was confused at the hearing, but he answered all the questions put to him.  The Board did not notify him of the Board’s Decision by phone despite request.

(2)  The Board had relied on the source of news not officially recognized or it is simply hearsay.  It had also relied on cases that are outdated.  All these resulted in the Board making groundless speculations that it is safe for him to return to his country.

(3)  BOR 2 was assessed without screening by the immigration officer, which is unfair.

(4)  The adjudicator had not been to his country to understand the real situation there before making her decisions.

DISCUSSION

21.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal.  The Court will not usurp the fact-finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

22.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant complained that the Board did not believe his evidence.

23.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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.”

24.  The Board had considered the applicant’s evidence and it came to the conclusion:

“71. For the reasons given above, I do not accept that the Appellant has given a credible account of having had any involvement with the BNP or its youth wing the Chatra Dal. It follows that I also do not accept his other claims about the various kinds of harm with which he claims to have been threatened because of his political views; but in any event, as explained above, each of his subsequent claims has its own substantial credibility problem. …”

25.  Having heard the applicant’s evidence, the Board was entitled to form its views on the credibility of his evidence.

26.  The applicant’s grounds above do not assist his application.  Most of the allegations are his personal views without concrete evidence in support.  As to the hearing bundle, there is no evidence in the Board’s Decision that the applicant had raised this issue and ask the Board to adjourn the case so that he would have more time to prepare his appeal.  He also said he had answered the Board’s questions.  This shows that he was not confused as he alleged.  The applicant is not entitled to interpretation service all the time[1]. It is obviously untrue to say that BOR 2 risk was assessed without screening by the immigration officer as this risk was assessed together with other applicable risks.  See paragraph 2 of the Director’s Decision.  It is not necessary for the adjudicator to go to his country to understand the situation there.  The adjudicator could rely upon the Country of Origin Information for the assessment of his claim.  The Board has no statutory duty to notify him by phone.

27.  There is no valid reason from the applicant to challenge the Board’s Decision.

28.  The applicant therefore fails to show that his intended judicial review of the Board’s Decision has any realistic prospect of success.

CONCLUSION

29.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.

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