Md Ibrahim Sheikh Alias Md Ibrahim Shakh v. The Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL1589/2018

[2019] HKCFI 587

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1589 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. He arrived in Hong Kong illegally on 13 November 2016 through China. On 24 July 2017, he was arrested for taking up employment in Hong Kong without authority. He was convicted of the charge and was sentenced to 15 months’ imprisonment. He lodged a non-refoulement claim on 25 July 2017. He said that if he was returned to Bangladesh, he would be harmed or killed by the supporters of the Bangladesh Awami League (“AL”). He also feared that he might be arrested by the police for vandalizing the party office of AL.

3.In his statements given to the Director and the Board, he said that he was a member of Chatra Shibir (“CS”). In 2010, the leader of CS was arrested and in 2014, the leader was sentenced to death. There was a demonstration against the AL and he had vandalized its office. He was wanted by the police and his names were on the wanted list all around. He moved to different places to hide himself up. He had gone to China where he stayed for about 7 days. He was told that the matter in Bangladesh was settled. He returned to Bangladesh. But upon arrival, he was told that the settlement was faked. He came to Hong Kong.

The Director’s Decision

4.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”).

5.By Notice of Decision dated 6 February 2018 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was not substantiated.

The Board

6.The applicant appealed to the Board and attended a hearing before the Adjudicator on 27 July 2018.

7.By Decision dated 2 August 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

8.The Adjudicator stated in the Board’s Decision that he did not accept that the AL people were looking for him everywhere in Bangladesh [18.2]; that he had suffered by serious injury that fitted within the context of BOR 2 risk [23]; that state protection should be available to the applicant [28]; that he had not raised a torture claim immediately after he arrived in Hong Kong [29] and the fact he sneaked into Hong Kong illegally, showing him to be a dishonest person [30]; that he had taken up employment unlawfully [30]; that he was a dishonest and unreliable person [32].

9.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 Director’s Decision and the Board’s Decision.

10.In his affirmation in support of his application dated 8 August 2018, the applicant relied upon the grounds below:

(1)  the Director and the Board failed to give him sufficient time to arrange relevant evidence in support of his claim;

(2)  the Director failed to consider stet acquiescence;

(3)  the Director failed to consider his argument;

(4)  the Director failed to consider the Country of Origin Information in favour of his claim and he had his pre-conclusive conclusion; and

(5)  the Director failed to appreciate that Bangladeshi administration is incompetent and corruptive.

DISCUSSION

The Director’s Decision

11.In the decision in Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision

12.The applicant has not set out any exceptional circumstances.

13.Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

14.The applicant’s application for leave for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

15.The applicant appeared before me. He confirmed that he considered that he had had a fair hearing before the Adjudicator. But he was not happy with his Decision.

16.As to Ground (1), the applicant was asked what documents or evidence he intended to adduce to support his claim. The applicant said that they were the documents concerning the vandalizing of the AL’s office and police charge and warrant. However, the applicant admitted that he had taken part in vandalizing the AL’s office himself. Since he admitted the act, this ground cannot sustain because the evidence will not support his claim.

17.Grounds (2) to (5) are his opinion without any evidence in support of them. They fail.

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 13^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