MOSTAFA KAMAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2079/2019

[2024] HKCFI 3055

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2079 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 the Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Mr Mostafa Kamal (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 20 June 2019 (“2019 Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 13 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 5 April 1980 in District Comilla, Bangladesh. He received 10 years of education and had 3 years of work experience as a shopkeeper.

The Claim

3.  The Applicant relied on the following facts for his claim. The Applicant’s paternal uncle (“Uncle”) was an active member of the Bangladesh Nationalist Party (“BNP”). The Applicant also joined the BNP when he was 16 years old and became the chairman of the student wing of BNP.

4.  On 16 November 2005, Uncle and his colleagues were beaten up by members of the rival political party, the Awami League (“AL”). The Applicant heard about the attack and he rushed to help. He tried to calm the AL people down but was beaten by hockey sticks instead (“Incident”). He suffered from a broken little finger and a fractured left ankle.

5.  The Applicant was hospitalized for one month. Uncle told the Applicant that the AL people would take him away when they found him. The Applicant was not harmed at the hospital. After being discharged, he went to live with his maternal grandmother in Nurpur where he stayed peacefully for a month. Not wanting to burden his grandmother, the Applicant traveled to Dhaka, where he stayed peacefully for 10 days. The Applicant fled to Hong Kong after his father told him over the phone that he should leave the country to save his life.

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

Procedural history

7.  The Applicant arrived in Hong Kong on 25 February 2006 as a visitor and was permitted to remain until 11 March 2006. He overstayed and was arrested by the police on 25 July 2007.

8.  On 13 August 2007, the Applicant made a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”). The Director rejected the CAT Claim on 27 September 2013 and the Applicant’s appeal to the Board was dismissed on 7 April 2014. The Applicant did not take the matter further. Thus, the CAT Claim was concluded.

9.  By a written representation of 19 November 2013, the Applicant lodged the Claim. 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”);

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

10.  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.

11.  On 22 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 Board as the proposed respondent and the Director as the interested party.

The 2018 DOI Decision

12.  The Director noted that the low intensity and low frequency of past ill-treatment from the AL people was indicative of a small future risk of harm upon the Applicant’s return.

13.  The Director further found that the overall conduct of the Applicant after his arrival in Hong Kong to be inconsistent with a person genuinely in fears of threats of being harmed or killed and that the alleged risk from the AL people was not as threatening as he claimed. This was because he did not seek protection immediately after coming to Hong Kong in February 2006 but had instead waited until his arrest in July 2007 to make the CAT Claim.

14.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that reasonable state protection would be available to the Applicant if necessary.

15.  The Director further found that internal relocation would be viable to the Applicant. If the Applicant moved to Nurpur or Dhaka, where he was able to stay peacefully in the past, the AL people would have great difficulty in locating him. The Director held that the action by a few local AL members was not representative of the stance of the AL as a whole. There was no substantial ground to believe that the local AL people had the abilities and resources to locate the Applicant nationwide in Bangladesh (§16 of the 2018 DOI Decision). 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.

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

The 2019 Board’s Decision

17.  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 the hearing before the Board, the Board identified several “inconsistencies and implausibilities” in the Applicant’s evidence but was nonetheless prepared to assess his claim on the basis that the events he relied on were true.

18.  The Board found that the alleged risk he faced from the AL people was not serious enough to attain the minimum level of severity necessary for claiming protection. It noted that the AL people were armed with hockey sticks in the Incident and they could have inflicted serious injuries on the Applicant if they wanted to, but they refrained from doing so.

19.  After considering the COI, the Board found that reasonable state protection would be available to the Applicant upon his return.

20.  After considering the Applicant’s education and work experience, the Board also found that internal relocation to Dhaka or Chittagong would be viable. The Applicant was able to live peacefully in Dhaka in the past and there was no evidence to suggest that the Bangladeshi government was adversely interested in him.

21.  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

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

23.  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”.

24.  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

25.  The Applicant failed to attend the court hearing scheduled for 10 October 2024 despite notice of hearing having been sent to him on 25 September 2024. I decide to proceed with this application according to papers already placed before the court.

26.  The Applicant did not advance any grounds for his intended judicial review in the Form 86. In the Supporting Affirmation, the Applicant only produced the 2019 Board’s Decision and the Board’s covering letter as well as the hearing bundle for the hearing before the Board as exhibits to the Supporting Affirmation.

27.  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.

28.  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 high standards of fairness.

29.  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. Reasonable state protection was available and internal relocation was viable to the Applicant.

30.  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 proposed judicial review has no realistic prospects of success.

Conclusion

31.  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