Saha Sajon v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL1568/2018

[2019] HKCFI 550

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1568 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 Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration as interested party (“the Director”).

The applicant

2.The applicant is a Bangladeshi national. He entered Hong Kong illegally and was arrested on 28 June 2014. On 1 July 2014, he raised a non-refoulement claim with the Director.

3.He claimed that if he were to be returned to Bangladesh, he would be harmed or killed by Mohammad Ramzan and the Awami League members and the Muslim people in his village.

4.In his statements given to the Director and the Board, he said that he was a member of the Bangladesh Nationalist Party and was involved in a fight with the Awami League in 2011. He was beaten up in 2012 and was threatened in 2014. In addition, the applicant was a Hindu and had suffered discrimination because of his religion.

The Director’s Decision

5.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”).

6.By Notice of Decision dated 10 January 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. He attended a hearing on 20 April 2018. The Adjudicator re-heard the case de novo. See §8 of the Decision dated 27 July 2018 (“the Board’s Decision”). The Adjudicator had also noted the reasons in the Director’s Decision.

8.Having considered the evidence, the Board refused the applicant’s appeal and confirmed the Director’s Decision.

9.The Adjudicator had given some credence to the applicant’s evidence though he found that the applicant’s claim was vague and unsubstantiated as regards his involvement with the Bangladesh Nationalist Party. [13] Having considered the Country of Origin Information (“COI”), the Adjudicator found that it would be save for the applicant to relocate. [35]; he had not established a well-founded fear of persecution on account of political opinion; that he had no real risk to BOR 2 and BOR 3 risks [49 & 52]. These are the facts found by the Board.

Application for leave for judicial review

10.By Form 86 dated 8 August 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.

11.In his affirmation in support of his application dated 8 August 2018, the applicant set out the reasons in support of his application below:

(1)  the Director and the Board failed to exercised their discretion fairly and reasonably and they had also failed to meet the greater care and duty owed to a self-represented claminant;

(2)  the Hearing Bundle was given to him shortly before the appeal hearing, so he had not sufficient time to prepare for the hearing;

(3)  the Hearing Bundle was in English without translation;

(4)  he was confused at the hearing; and

(5)  the Board had relied upon COI which is outdated and hearsay.

DISCUSSION

12.The applicant appeared before me. He confirmed that he had no complaint against the Adjudicator and he considered that the appeal hearing was a fair hearing. He was free to give all his facts to the Adjudicator.

13.He further said that before the appeal hearing, he was assisted by his friend with the Hearing Bundle. He understood the content of it before the appeal hearing and he was not confused at the hearing.

14.Ground (1) is his opinion without any evidence to support. It fails.

15.Grounds (2), (3) and (4) are inconsistent with his evidence in court. They fail obviously.

16.It is clear that the Adjudicator had considered COI extensively and he had analyzed it carefully. The applicant was unable to identify which part of the COI was outdated of hearsay. This ground is unsubstantiated.

17.The applicant fails to show that he had a reasonable chance of success in his proposed 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 judicial review. Accordingly, I dismiss his application.

Dated the 8^th 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