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Re Mojumder Sonjoy

Judgment Cited authorities 18 Cited in 2 Precedent Map Related
Vincent
Judgment Date24 September 2018
Neutral Citation[2018] HKCA 634
Year2018
Judgement NumberCACV235/2018
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV235/2018 RE MOJUMDER SONJOY

CACV 235/2018

[2018] HKCA 634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 235 OF 2018

(ON APPEAL FROM HCAL 771/2017)

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RE: MOJUMDER SONJOY Applicant

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Before: Hon Yuen JA and Barma JA in Court
Date of Hearing: 14 September 2018
Date of Handing Down Judgment: 24 September 2018

___________________

J U D G M E N T

___________________

Hon Barma JA (giving the Judgment of the Court):

1. This is an appeal against the decision of Deputy High Court Judge Josiah Lam given on 5 June 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 4 October 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration rejecting the applicant’s non-refoulement claim.

Background

2. The applicant is a national of Bangladesh. He entered Hong Kong on 2 October 2012 illegally and was arrested on the same day. After his arrest, he lodged a claim based on Art 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 6 October 2012.

3. The applicant’s claim was based on the threat from a group of alleged terrorists. According to the applicant, a man known as Jibon visited the applicant’s shop in Bangladesh in around August 2012. Jibon was a terrorist and also a leader of the Bangladesh Nationalist Party. Jibon left a box inside the shop. Thirty minutes later, a man claiming to have been instructed by Jibon took the box away. Later, Jibon returned to the shop asking for the return of the box. When he found out that the applicant allowed the box to be taken away, he demanded a large sum of money as compensation. After receiving death threats from Jibon, he decided to flee to Hong Kong.

4. The Director of Immigration refused his claim on 14 February 2013. The applicant appealed but the Torture Claims Appeal Board refused the applicant’s application for the late filing of an appeal.

5. On 29 April 2013, the applicant raised a non-refoulement claim. On 28 November 2016, the applicant submitted additional facts to the Director. The applicant said there was recent escalated tension and disturbances between the Muslims and the Hindus in Bangladesh. The Hindus were persecuted by the Muslims. The applicant feared that he being a Hindu would be persecuted and killed by the Muslims. He feared Jibon and his gang, who were Muslims, would take advantage of the situation to harm the applicant and his family. At the TCAB hearing, the applicant also claimed that he feared harm from Rohingyas coming from Myanmar to Bangladesh.

6. By a Notice of Decision dated 24 April 2017, the Director dismissed the applicant’s claim on the following grounds: BOR 2 risk[1], BOR 3 risk[2] and the persecution risk[3].

7. The applicant appealed to the Torture Claims Appeal Board. After a hearing on 11 September 2017, the Board dismissed the appeal on 4 October 2017 on all 4 applicable grounds (BOR2 risk, BOR3 risk, persecution risk and torture risk) (“Board’s Decision”).

8. At [38] of the Board’s Decision, the Board found that the applicant was not a credible witness. At [49] the Board accepted that if the applicant returns to Bangladesh he may be considered as a Hindu and face some harassment. However, the harassment was not so serious that the applicant’s situation will fall under any of the applicable ground. At [57] the Board held that it was not necessary for the Board to assess state acquiescence.

The deputy judge’s decision

9. The applicant filed a form 86 on 17 October 2017. The form 86 contained no ground for seeking relief.

10. In the affirmation in support of the leave application dated 17 October 2017, the applicant advanced the following grounds for judicial review:

(1) the Board erred in finding the applicant to be incredible;

(2) the Board was wrong to find there was no misconduct on the part of the Director;

(3) the Board failed to attain the high standards of fairness;

(4) the Board failed to understand persecution against the Hindus in Bangladesh;

(5) the Board and the Director failed to conduct sufficient inquiry into the conditions of Bangladesh;

(6) the Board and the Director failed to conduct critical analysis of relevant information;

(7) the Board and the Director cherry-picked information;

(8) the Board and the Director were not clear of the risks facing the Hindus in Bangladesh in that they were persecuted by the Muslim majority;

(9) the Board and the Director failed to appreciate the lack of state protection;

(10) the Board and the Director failed to consider extended state acquiescence;

(11) the Board and the Director failed to assess his claim under all the applicable grounds.

11. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave to apply for leave to bring judicial review proceedings. The judge gave the following reasons at paragraphs 33 to 41 of the CALL-1 form:

“33. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

34. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.

35. I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had each engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case.

36. Unfortunately, the immigration officer on behalf of the Director wrongly considered that he need not reconsider the torture risk issue in 2017 despite the Applicant in his further submission dated 16 November 2016 had added the allegation of recent escalated persecution of the Hindus by the Muslims in Bangladesh. I agree with the Adjudicator that the additional allegation would oblige a reconsideration of the Applicant’s claim with respect to torture risk. That the Director failed to do so was an error of law. However, the Adjudicator had made up for that. The Adjudicator meticulously reconsidered the Applicant’s claim in relation to all the four applicable grounds including torture risk.

37. In his decision dated 4 October 2017, the Adjudicator had proper basis to find the Applicant’s claim incredible. He...

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2 cases
  • Re Dhimal Kamala
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 28 September 2018
    ...RE DHIMAL KAMALA CACV 196/2018 [2018] HKCA 634 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 196 OF 2018 (ON APPEAL FROM HCAL 539/2017) ----------------------------------- RE: DHIMAL KAMALA Applicant ----------------------------------- Befo......
  • Re Mojumder Sonjoy
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 10 December 2018
    ...(Maria Yuen) (Aarif Barma) (Ian McWalters) Justice of Appeal Justice of Appeal Justice of Appeal The applicant acting in person [1] See [2018] HKCA 634 ...

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