Bappy Shahajada Murad v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1416/2018 on BabelCite. This High Court CFI judgment was delivered on 8 March 2019.
1. This is the applicant’s application for leave for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as the interested party.
Cites 1 case
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HCAL1416/2018 [2019] HKCFI 546 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1416 of 2018 BETWEEN
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 K.W. Lung:
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 Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as the interested party. The applicant 2.The applicant is a Bangladeshi national. On 20 March 2014, he was arrested by police for entering Hong Kong illegally. On 21 March 2014, he was referred to the Immigration Department for investigation. On 22 March 2014, he lodged his non-refoulement claim. 3.He claimed that if he were to be returned to Bangladesh, he would be harmed or killed by members of Awami League. 4.In his statements given to the Director and the Board, he said that he was a member of the Bangladeshi Nationalist Party (“BNP”). He was approached by members of the rival party, Awami League, Munna and Prince sometime in 2008. They told him to leave BNP. He refused. In 2009, he and his friends were attacked by Mumma and Prince and their friends on three separate occasions and at different places as he was trying to move to other places to avoid them. In 2010, he was again attacked by Munna and his friends. He fled to Dubai to work for two and a half years. He then returned to Bangladesh. He met Munna again and was attacked by him. He learned that Hong Kong would provide protection for refugees. He spent HKD $12,000 to get to Hong Kong. The Director’s Decision 5.The Director considered his application in relation to the following risks:
6.By Notice of Decision dated 22 September 2017 (“the Director’s Decision”), the Director refused his application for the reason that his non-refoulement claim was not substantiated. The Board 7.The applicant appealed to the Board. On 28 May 2018 he attended the hearing before the Adjudicator. 8.Having considered the applicant’s evidence, the Board, by Decision dated 21 June 2018 (“the Board’s Decision”), refused his appeal and confirmed the Director’s Decision. 9.The applicant elected not to make further submission before the Adjudicator. See paragraph 20 of the Board’s Decision. 10.For the reasons set out in paragraph 21 of the Board’s Decision, the Adjudicator had doubts whether the applicant was telling him the truth. [vi] The Adjudicator found that there was no evidence that the state was involved in this case. [xii] 11.The Board also found that state protection was available for the applicant. [28] Application for leave for judicial review 12.By Form 86 dated 18 July 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Board’s Decision, with the Director as the interested party. 13.In his affirmation in support of his application dated 18 July 2018, the applicant set out the reasons in support of his application below:
DISCUSSION 14.The applicant had appeared before me. He confirmed that he could read English himself and it was unnecessary to have translation of the Hearing Bundle for him. He had read the Hearing Bundle before the appeal hearing. He had had no difficulty with the Adjudicator. Also, he had no complaint against the Adjudicator except that he was unhappy with the Adjudicator’s decision. 15.He further said that the affirmation was prepared by his friend whom he trusted. He did not read through it before he signed it. 16.Grounds (1) to (3) are obviously inconsistent with what he said before this Court. They fail. 17.As to the allegation that the Board had relied on the source of news which was outdated or simply hearsay, under section 18 of Schedule 1A(1) of the Ordinance, the Board may consider the same evidence that was before the Immigration officer[1]. The Director is entitled to consider any relevant materials for the investigation under section 37ZB of the Immigration Ordinance (“the Ordinance”)[2]. The Director had considered the relevant reports in relation to the Country of Origin Information. They are recognized information for assessment of the risks as raised by the applicant in the legal proceedings. The Court of Final Appeal had also relied upon The Handbook (United Nations High Commission for Refugees) in its Judgment in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187[3]. The applicant has not set out any reason why he considers that the information is unreliable. Ground (4) fails too. 18.I find that the applicant is unable to show that his proposed judicial review has reasonable chance of success CONCLUSION 19.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the judicial review. Accordingly, I dismiss his application. Dated the 8th day of March 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 [1] In an appeal under section 37ZR, the Appeal Board has the power to review the merits of the case, and accordingly it may consider—
[2] After a completed torture claim form is returned by a claimant, an immigration officer—
[3] See §21 |
Cases cited in this judgment
Further hearings and rulings under HCAL 1416/2018