Bhuiyan Jahirul Islam v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL1580/2018

[2019] HKCFI 614

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1580 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”) and the Director of Immigration (“the Director”).

The applicant

2.The applicant is a Bangladeshi national. On 21 December 2015, he came to Hong Kong as a visitor and was allowed to stay until 4 January 2016. He overstayed without the Director’s permission. On 5 January 2016, he surrendered to the Immigration Department. He raised his non-refoulement claim on 1 September 2016.

3.He claimed that if he was returned to Bangladesh, he would be harmed or killed by the Awami League members.

4.In his statements given to the Director and the Board, the applicant said that he was an official of the Bangladesh Nationalist Party (“BNP”), a rival with the Awami League. In 2014 he opened a mobile telephone shop. He was attacked by the Awami League members. He suffered injuries and was admitted to hospital for treatment. Between 2011 and 2014, he was harassed by the Awami League members. In 2014, he closed his shop. In 2015, the Awami League members went to his home and attacked his family. He fled Bangladesh. He came to Hong Kong in December the same year.

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 8 February 2017 (“the Director’s Decision”), the Director rejected 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 24 April 2018.

8.The Adjudicator found that the applicant was uncooperative with him and he refused to answer his questions. See §§3, 7 and 17 of the Decision dated 13 July 2018 (“the Board’s Decision”) by which the Board refused his appeal and confirmed the Director’s Decision.

9.In paragraphs 17 and 18 of the Board’s Decision, the Adjudicator reported:

“17. Given the Appellant’s failure to cooperate with the Board and the clear discrepancies in the answers he did give, the Board attaches no credence at all to the Appellant’s claim to have been a member of the BNP or to have been attacked because of it.

18. To summarise its findings: the Board accepts no part of the Appellant’s claim.”

Application for leave for judicial review

10.By Form 86 dated 9 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 Director’s Decision and the Board’s Decision.

11.In his affirmation in support of his application dated on 9 August 2018, the applicant did not set out any grounds in support of his application.

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 than this Court to make investigations in the matter. The Board had considered 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.The applicant appeared before me. He confirmed the following:

a.  he had no complaint against the Immigration officer; and

b.  he had no complaint against the Adjudicator.

16.The applicant fails to show that he had a reasonable chance of success in his proposed judicial review.

CONCLUSION

17.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 14^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