Islam Mohammad Haizul v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL1121/2018

[2019] HKCFI 393

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1121 of 2018

BETWEEN

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;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.This is the applicant’s application for leave for judicial review against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.The applicant is a Bangladeshi national. He came to Hong Kong through China on 15 May 2015 illegally. He was arrested by police on 18 May 2015 and was transferred to the Immigration Department for investigation. He lodged a non-refoulement claim on 20 May 2015 and was released on recognizance on 18 June 2015.

3.The applicant claimed that if he was returned to Bangladesh, he would be ill-treated or even killed by member of the Awami League (“AL”) owing to his involvement with the Jamaat-e-Islami and he would be wrongly accused by the police in Bangladesh. He further added that he was in fear of facing long term imprisonment due to false cases framed by AL against him.

The Director’s Decision

4.The Director considered his application in relation to the following risks:

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

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

5.By Notice of Decision dated 8 December 2017 (“the Director’s Decision”), the Director refused his application on the ground that he failed to substantiate his claims.

The Board

6.The applicant appealed to the Board. A hearing was held on 14 March 2018, which he attended.

7.The Adjudicator had put a lot of questions to test the veracity of his evidence that he had given to the Director.

8.By Decision dated 4 June 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

9.The Adjudicator had made an extensive analysis of his evidence, pointing out the inconsistencies between his evidence at the hearing and his evidence given to the Immigration officer. She found that the applicant had fabricated his claim. See §§60, 62 and 68. At paragraph 77 of the Board’s Decision, the Adjudicator said:

“Given the above findings, I am not satisfied that if the Appellant returns to Bangladesh that there is a real chance, a real risk or substantial or strong grounds for believing that he will be subjected to harm amounting to torture, CIDTP, a risk to his life, or persecution from any persons from the AL [Awami League] or those associated with the AL. Nor am I satisfied that he will suffer from harm amounting to torture, CIDTP, a risk to his life or persecution from the Bangladeshi authorities, including the police, RAB or security agencies more generally. …”

Application for leave for judicial review

10.By Form 86 dated 19 June 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the decisions the Director and the Adjudicator of the Board respectively.

11.In his affirmation in support of his application filed on 19 June 2018, he did not set out the reasons in support of his application. He simply attached a copy of the Director’s Decision and a copy of the Board’s Decision to his affirmation.

DISCUSSION

The Director’s Decision

12.In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances.  In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power that this Court to make investigations in the matter. The Board had heard his appeal and made its Decision.

13.Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

14.For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

The Board’s Decision

15.At the hearing before myself, the applicant confirmed that he did not have any specific reasons in support of his application save to say that he would like this court to re-consider his case. In the circumstances, I shall subject the Board’s Decision to rigorous examination and anxious scrutiny.

16.It is obvious that the Board had given no credit to his evidence of his claim. He has no factual basis in support of his claim.

17.Having subjected the Board’s Decision to rigorous examination and anxious scrutiny, I consider that the applicant has no substantiated grounds in support of his judicial review.

CONCLUSION

18.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the proposed judicial review. Accordingly, I dismiss his application.

Dated the 22^nd day of February 2019

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