Moung Khing Rakhing v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL408/2017

[2018] HKCFI 587

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 408 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is a Bangladeshi male who claimed to have illegally entered Hong Kong on 11 May 2007.  He was arrested by the police on 26 May 2008 and then lodged a non‑refoulement protection claim after that arrest.  His claim was rejected by the Director of Immigration (“the Director”) on 28 October 2015 and 23 March 2017.  He did lodge an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 19 May 2017.  The applicant filed a notice of application for leave to apply for judicial review of that decision on 14 July 2017.

2.This application was set down for a hearing on 7 December 2017.  The applicant did file a supporting affirmation but there were no grounds in it; just a brief repetition of his claim and a statement that his life would be in danger if he were refouled to Bangladesh.  Both the Director and the adjudicator of the TCAB set out his claim and evidence in detail in their decisions therefore, I do not intend to repeat it here.

3.The applicant had no grounds to put forward in the oral hearing except to say he was not satisfied with the decisions made but he wanted to give details of new evidence that was not before the TCAB.  He told me that his uncle told him that their temple was completely destroyed only two to three weeks prior to this application’s hearing date because the Muslims hunting for him and his brother went there to look for them.  This is despite the fact the applicant and his brother have been gone for 10 years.

4.I have considered the decision of the adjudicator of the TCAB.  He treated the appeal/petition as a rehearing.  The applicant was given an oral hearing, adopted his previous evidence and interviews and elected to answer questions from the adjudicator.  The adjudicator set out the applicant’s evidence.  He also correctly set out the law and key legal principles applicable to the four grounds below.

5.The adjudicator, as did the Director analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

6.The adjudicator also considered relevant, objective, up-to-date and internationally recognised Country of Origin information.  That information is cited and set out in his decision.  He made a finding that there was State protection available to the applicant if he was at any risk.

7.He applied the law, key legal principles and the four applicable grounds to the applicant’s evidence and found that the applicant was unable to rely on these grounds to successfully claim that he was at risk of torture if he returned to Bangladesh, at risk of ill‑treatment under BOR3 or at risk of a violation of his rights under BOR2 or had a well‑founded fear of being persecuted if refouled.  The adjudicator confirmed the decision of the Director.

8.The adjudicator separately and independently considered the applicant’s credibility.  He had his concerns and put those to the applicant during the hearing.  After considering his explanations as well as the number and nature of inconsistencies, the adjudicator was not convinced the applicant was a genuine claimant.  He set out his reasons in detail from paragraphs 63 to 69 in his decision.

Leave to apply for judicial review

9.Even though the applicant has not put forward any grounds in his affirmation, I have nonetheless considered with rigourous examination and anxious scrutiny the decision of the adjudicator.

10.I do not find any error of law or evidence of procedural unfairness on his part.  I do not find a failure to adhere to a high standard of fairness.  The substantive decision was not Wednesbury unreasonable.

11.In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.

Dated 23^rd day of March 2018.

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