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

HCAL1584/2018

[2019] HKCFI 619

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1584 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 of 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 26 December 2004, he came to Hong Kong as a visitor and was permitted to stay until 9 January 2005. He overstayed without the Director’s permission. On 8 July 2009, he was arrested by police and was handed over to the Immigration Department for further investigation. He made his claim for non-refoulement on 11 July 2009 for risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance. His application was refused by the Director. He appealed to the Board. The Board upheld the Director’s decision. He applied for judicial review of the decisions of the Director and the Board respectively. His application was successful and the Court of the First Instance set aside those decisions and ordered the case be re-considered by the Director on 14 August 2014. The Director accepted that on 14 August 2014, the applicant made his non-refoulement claim.

3.The applicant claimed that if he was returned to Bangladesh, he would be harmed or killed by the Awami League (“AL”) members, particularly Rahim, as he was general secretary of the Jatiya Party and Rahim was the secretary of the AL and leader and commander of a terrorist group in his area.

4.In his statement to the Director, he said that Rahim was well connected with the local police and he extorted money and property from other villagers there. Since he refused to join the AL, Rahim had told the local police to arrest and detain him in the police station for three days. He was tortured by the policers each day by beating with batons for two hours. He was released and he went to hospital for medical treatment. Rahim had even asked him to surrender his house to him. He refused and was harassed by Rahim and his people. They stabbed him with a knife. He moved away with his wife and children to live near his cousin. He decided to leave Bangladesh for Hong Kong, leaving his wife and children behind.

The Director’s Decisions

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 26 October 2015 (“the Director’s Decision”) and Notice of Further Decision dated 15 March 2017 (“the Director’s Further Decision”), collectively called “the Director’s Decisions”, 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 5 May 2017.

8.Having considered the evidence, the Board by Decision dated 30 July 2018 (“the Board’s Decision”) refused the applicant’s appeal and confirmed the Director’s Decisions.

9.The Adjudicator found that the applicant failed to establish substantial grounds in support of the Torture risk [60] and BOR 3 risk [64]; that he would be safe in other parts of Bangladesh and he was not suffering Persecution risk under RC [67]; that he would not be subject to BOR 2 risk back in Bangladesh [69]; that state protection was available to him [75] and finally, relocation was an option open to him [77].

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 Board’s Decision.

11.In his affirmation in support of his application dated 9 August 2018, the applicant relied upon the grounds as set out below.

(1)  The Board failed to maintain high standard of fairness because:

a.  the Hearing Bundle (in English) was sent to the applicant shortly before the appealing hearing without translation for him;

b.  he did not have sufficient time to prepare for the appeal and was without assistance;

c.  the Adjudicator asked him similar questions as the Immigration officer had asked him and he was therefore unable to give accurate and clear answers, rendering his evidence not credible;

d.  the Adjudicator failed to make proper arrangement by providing an interpreter for him to prepare the appeal and by adjourning the hearing to another date; and

e.  the Adjudicator excused attendance of the Director, a practice that showed that the Adjudicator would not find fault with the Director’s Decisions.

(2)  The Adjudicator had failed her duty of acting fairly.

(3)  The Adjudicator had not taken into account that the applicant was not legally represented and that she had not told the applicant that he could complain.

DISCUSSION

The Board’s Decision

12.The applicant appeared before me. He confirmed that he had no complaint against the Director or the Adjudicator. He was only dissatisfied with the Decisions that they made.

13.He also said that before the appeal hearing, he had his friend who explained the Hearing Bundle to him and that he had no problem at the appeal hearing.

14.In view of what he said in court, grounds (1)(a), (b) and (d) must fail.

15.Ground (1)(c) fails too because the Adjudicator was entitled to test the veracity of his evidence before the Immigration officer.

16.As to ground (1)(e), it is only his speculation without any evidence in support. If the Director considers that the applicant’s appeal was without ground, he might elect not to attend the appeal and made no submission to the Adjudicator. This ground fails.

17.Grounds (2) and (3) are the applicant’s opinion without any evidence to support.

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

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 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