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

HCAL1585/2018

[2019] HKCFI 620

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1585 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 (“the Director”) as the interested party.

The applicant

2.The applicant is a Bangladeshi national. Between 2006 and 2013, he had entered Hong Kong as a visitor and he overstayed without the Director’s permission. He was removed to Bangladesh by a removal order on 6 May 2013. On 22 September 2014, he was arrested by police for illegally entering Hong Kong. On 24 September 2014, he was referred to the Immigration Department for further investigation. On 26 September 2014, he lodged his non-refoulement claim.

3.He claimed that if he was returned to Bangladesh, he would be harmed or killed by (i) Mohammad Rafik, Haydar and some Bangladesh Nationalist Party (“BNP”) people because he had witnessed them killing a shopkeeper in 2003; (ii) Rafik and Haydar who had changed to join the Awami League (“AL”) and other AL members because in 2013 he had converted to become a member of the Jamaat-e-Islami: a party which the AL is against; and (iii) the police in Bangladesh as they would be influenced by the ruling party, ie the then BNP and AL.

4.In his statements given to the Director, he said that in December 2013, a group of AL members and police officers came to look for him. He fled. But those people had beaten up his daughter. He stayed with a distant relative for eight and a half months, going back to his own home from time to time. He later fled to China and to Hong Kong.

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 30 July 2015 (“the Director’s Decision”) and Notice of Further Decision dated 3 July 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 15 May 2018.

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 was an unreliable witness, taking into consideration the factors under section 37 ZD of the Immigration Ordinance, in particular, he did not seek asylum in Hong Kong between 2006 and 2008 [31 & 36]; that he failed to establish substantial grounds in support of the Torture risk [12] and BOR 3 risk and that he could live in other areas in Bangladesh [22 & 23]; that he would not be subject to BOR 2 risk back in Bangladesh [24]; that state protection and the option of relocation were available to him [28 & 29].

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 his duty of acting fairly.

(3)  The Adjudicator had not taken into account that the applicant was not legally represented and that he 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 considered 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 had 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