AHMED SHOFIQUE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2352/2019

[2024] HKCFI 2123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2352 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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Mr Ahmed Shofique (the “Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (the “Board”) dated 7 August 2019 (the “Board’s Decision”) when the Board affirmed the decision of the Director of Immigration dated 13 December 2018 (the “DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (the “Claim”).

Background of the Applicant

2.  As set out in the DOI Decision and the Board’s Decision, the Applicant is a Bangladeshi.  He was born on 24 August 1978.

3.  From 2004 to 2007, the Applicant worked in United Arab Emirates (“UAE”).  From 2002 to 2003 and from 2013 to 2015, he operated his own poultry farm.

4.  The Applicant claimed to be a supporter of the Bangladesh National Party (“BNP”) since 2006.  He claimed to have formally joined BNP as a party member in the end of 2013.

The Claim

5.  In 2014, Mr Enamul Haq Mamun (“Enamul”), an active member of the youth wing of the Awami League (“AL”), another political party in Bangladesh, and other AL members started threatening the Applicant to stop supporting BNP.  Enamul was also the president of Lakhai station in the Applicant’s home area and the chairman in the Applicant’s home village.

6.  The AL members asked the Applicant to quit BNP and join AL.  When the Applicant refused their request, the AL members threatened to kill the Applicant. 

7.  The AL people had never actually assaulted the Applicant but the Applicant decided to leave his home village to his aunt’s place in Habibgani city which was about 10 miles from his home village. However, the AL people still came to his aunt’s place to look for him.  He left through the back door and returned to his home village.  His aunt told him that the AL people threatened to harm her and her family if she gave shelter to the Applicant in future.

8.  About 4 to 5 days later, 5 to 6 AL people came to the Applicant’s home and tried to kill him.  The Applicant escaped but his family members got severe injuries.    

9.  Out of fear, the Applicant went to Dhaka to get visa and air ticket to China.  He stayed in Dhaka for 7 to 8 days without problems.  In December 2015, he set off for China before he came to Hong Kong.

10.  The Applicant claimed that he would be harmed or even killed by the AL members if he returned to Bangladesh because he belonged to BNP.

Procedural history

11.  The Applicant departed Bangladesh for China by air in December 2015.

12.  On 21 December 2015, the Applicant sneaked into Hong Kong from the Mainland by boat illegally.  He surrendered to the Immigration Department on 22 December 2015.  By a written representation of 15 April 2016, the Applicant lodged the Claim. 

13.  The Director of Immigration (the “Director”) had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

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

(b)  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, Cap. 383 (the “BOR”) (“BOR 2 risk”);

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

(d)  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”).

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

15.  On 15 August 2019, the Applicant filed the Form 86 herein (the “Form 86”) seeking leave for judicial review of the Board’s Decision and the DOI Decision.  The Applicant named both the Board and the Director as proposed respondents in the Form 86.

16.  The Applicant filed his supporting affirmation on 15 August 2019 (the “Supporting Affirmation”).

17.  On 20 June 2024, the Applicant filed another affirmation applying to withdraw this intended judicial review application stating that all his problems back home had finished and his mother was very sick (the “Withdrawal Application”).

The DOI Decision

18.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that there would be any real and substantial risk of the Applicant being harmed or killed by the AL people upon return to Bangladesh.

19.  The Director had doubt on the Applicant’s credibility as he did not seek protection from the Chinese authority in the first available opportunity and chose to return to his home village after experiencing threats in his aunt’s place when he could have moved to other Bangladeshi cities such as Dhaka where he were unharmed during his stay for about 7 to 8 days before departing Bangladesh.

20.  The Director was of the view that the Applicant was just an ordinary member of BNP.  It was highly unlikely that he had been/would be targeted by the whole AL in Bangladesh.  His problem with the AL people in his locality was only a private grudge without any involvement of official capacity.  The fact that the Applicant did not encounter any problem upon departure from Bangladesh indicated that he was not a target of the Bangladeshi government or authorities.  As no official capacity was taken part in the Applicant’s claimed problem in Bangladesh, there was no substantial grounds for believing that the AL people would/could mobilize huge resources of the government to search for the Applicant throughout the country.

21.  The Director opined that the Applicant’s problem in Bangladesh was just a localized one.  Bangladesh is a large country spreading across 148,000 sq. km. with an estimated population of over 159 million people as at July 2018.  The Applicant has many viable alternatives to relocate to other districts of Bangladesh such as Moulvibazar or Dhaka with high population density.  Internal relocation is permissible under the laws in Bangladesh. 

22.  The Director viewed that the Applicant’s perceived threat of harm by those AL people was a localized issue only.  The risk of harm was assessed to be small especially if the Applicant would relocate to other places far away from his home area.  Internal relocation alternatives are available and reasonable, which lowers or negates the perceived risk of harm from the AL people.  Being an able-bodied adult with 10 years formal education and 7 years working experience, the Director was of the view that it was not unreasonable and unduly harsh for the Applicant to relocate to other areas in Bangladesh to lower or negate the perceived risk of being harmed by the AL people upon his return to Bangladesh.

23.  The Applicant had never been actually attacked by the AL people.  The low intensity and frequency of past ill-treatment from the AL people indicated that the future risk of the Applicant being harmed or killed upon his return to Bangladesh was not likely to materialized.   

24.  The Applicant had never sought help from the Bangladeshi police.  After considering the relevant country of origin information (“COI”), the Director formed the view that the availability of state protection would further lower or negate the level of risk.  There was nothing in the COI showing that the Bangladeshi authorities would be unable or unwilling to discharge their duties or tolerate any unlawful and abusive behaviour committed by an individual even when the offenders were leaders and member of AL.  The Director did not accept that reasonable state protection would not be available to the Applicant.

25.  For the aforesaid reasons, the Director did not accept that the Applicant would face a real and personal risk of being subjected to ill-treatment prohibited by BOR 3 upon his return to Bangladesh. The Director also found that the Applicant failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2 upon his return to Bangladesh.

26.  The Director considered that the ill-treatment feared by the Applicant did not fall within the ambit of persecution risk.  It arose from private dispute between the Applicant and the AL people and had nothing to do with any authority of Bangladesh.  It also had nothing to do with race, religion, nationality, membership of a particular social or political opinion.  The Director did not accept that the Applicant’s fear was well-found.  The Director assessed that the Applicant’s case did not warrant non-refoulement protection on the grounds of persecution risk.

27.  For reasons set out in the DOI Decision, the Director assessed the claimed risk of ill-treatment to be not real and unforeseeable.  The Director did not accept that there were substantial grounds for believing that the Applicant would be subject to torture upon his return to Bangladesh. 

28.  The Applicant’s claimed ill-treatment was not/would not be inflicted by or at the instigation of, or with the consent or active/passive acquiescence of a public official or other person acting in an official capacity.  It was noted that no severe pain or suffering within the definition of “torture” under section 37U(1) of the Ordinance had ever been inflicted upon the Applicant in the past, which was indicative of small, if any, future risk of “torture” as defined.

29.  The purpose of the AL people harming the Applicant had nothing to do with the Bangladeshi government’s interest or policy and was not within the definition of “torture” under section 37U(1) of the Ordinance. 

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

The Board’s Decision

31.  The Board after considering the Applicant’s claims including his written evidence, the record of his interview, his notice of appeal and his oral evidence given at hearing before the Board, formed the view that the Applicant was not a witness of truth and that he had fabricated claims in relation to his involvement with BNP and the problems he faced from members of the AL, particularly Enamul.

32.  The Board found a number of significant inconsistencies between the Applicant’s written claims and his oral evidence during the hearing and deficiencies in his evidence, relating to central and crucial aspects of the Claim which raised serious doubts about the credibility of his claims.

33.  The Board did not accept the Applicant was a supporter or member of BNP.  His evidence as to when he started supporting BNP and when he became a member was inconsistent.  The Applicant claimed that he had let people know about BNP and had worked for BNP since 2005/2006, yet his evidence was that he was working in UAE during this period of time, raising serious doubts that he engaged in any activities in support of BNP at that time.

34.  In respect of when he joined BNP, the Applicant stated in the hearing that it was in 2008, yet in his form for the Claim he claimed that it was at the end of 2013.  The Applicant was unable to tell the Board what he had to do to become a member of BNP despite previously claiming in his claim form that he had completed a party membership form.

35.  The Applicant claimed that he did not have to pay a fee when he joined BNP but relevant COI said that membership fee was payable for BNP membership since 2008. 

36.  The Applicant was unable to describe the BNP flag correctly.  He was also unable to tell correctly which years BNP had been in power in Bangladesh.

37.  The Applicant’s evidence regarding the 2014 general election in Bangladesh further confirmed the Board’s doubt on the Applicant’s association with BNP or politics in Bangladesh.  The Applicant confirmed in the hearing that he had participated in the 2014 election campaigning for BNP but said that he could not remember how BNP faired in this election. The relevant COI stated that BNP boycotted the 2014 general election.  The Board noted that the Applicant himself had referred to BNP’s boycott of the 2014 election in documents attached to his claim form, yet he would not recall this significant fact in the hearing.  The Board found the Applicant’s ignorance of this significant fact severely undermined the credibility of his claim that he was a supporter or member of BNP.

38.  As the Board did not accept that the Applicant was a supporter or member of BNP, it did not accept that the Applicant experienced problems from members of AL, particularly Enamul.  It followed that the Board did not accept that the Applicant moved to Habibgani city to stay with his aunt or the alleged subsequent threats to him and his aunt. 

39.  In the hearing, the Applicant claimed that the AL people came to his house to attack and beat him before he went to his aunt’s place in Habibgani.  He also claimed that after the AL people created problems to his aunt’s place, he went to Dhaka but before that he went home secretly at night to collect his clothes and only stayed there for one hour.  The Applicant’s oral evidence given at the hearing before the Board was different from his written claims as set out in his claim form.    

40.  After considering all the evidence adduced by the Applicant and for reasons stated in the Board’s Decision, the Board did not accept that the Applicant faced harm from AL members, including Enamul and his people, on his return to Bangladesh. 

41.  As the Board had not accepted the fundamental basis of the Applicant’s claim that he faced any form of harm upon return to his home country, the Board did not find it necessary to consider the questions of relocation or state protection. 

42.  The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM.  The Board affirmed the DOI Decision and dismissed the Appeal.  

Legal principles applicable to judicial review

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

44.  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”.

45.  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 a reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

46.  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 he would like to set aside the DOI Decision as the Director disagreed the danger and threats which he would face in his country should he be deported there.  The Applicant produced the Board’s Decision and the Board’s covering letter as exhibits to the Supporting Affirmation.  In effect, the Applicant seeks to challenge the finding of fact of the Director and/or the Board which is not permissible in a judicial review. 

47.  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 Boards’ Decision in affirming the DOI Decision, or in what way was the 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. 

48.  Having rigorously examined the Board’s Decision, the DOI Decision and the Supporting Affirmation with anxious scrutiny, I am 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 very high standards of fairness. 

49.  The Board found that the Applicant’s claims regarding his membership and support of BNP and the problems he experienced as a result from AL members, particularly Enamul, not credible.  The Board did not accept that the Applicant was a member or supporter of BNP or that he had been targeted by members of AL, including Enamul, because of his alleged political opinion and activities in support of BNP.  The Board found that the Applicant would not be at risk of any harm, ill-treatment, torture, CIDTP or persecution from members of AL, particularly Enamul and his men.  Returning the Applicant to Bangladesh would not expose him to a real risk of violation of his right to life.  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 four applicable grounds under the USM.  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 and irrationality.  In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Board’s Decision is without fault.  The proposed judicial review is not reasonably arguable.  

The Withdrawal Application

50.  The Applicant subsequently filed the Withdrawal Application on 20 June 2024 stating that all his problems back home had finished.

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

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

53.  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

54.  In the premise and having considered the Board’s Decision and the 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 his 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