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

HCAL1592/2018

[2019] HKCFI 588

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1592 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 interested party.

The applicant

2.The applicant is a Bangladeshi national. He arrived in Hong Kong on 19 June 2006 as a visitor. He overstayed without the Director’s permission. He was arrested by police. He lodged a non-refoulement claim on 18 July 2006. He claimed that if he was returned to Bangladesh, he would be harmed or even killed by people of the Bangladesh Nationalist Party (“BNP”) because his father had refused to join them and also he would be arrested by the police for a murder case. He presumed that he would be tried and sentenced to death by hanging.

3.In his statements given to the Director, the applicant said that in 2005, his father was pressured to join BNP. He refused. In 2006, the police came looking for his father on a charge of murder. Neither the Appellant nor his father was at home at the time and police left. The Applicant was subjected to threats and harassment by activists from the BNP during 2006 until he left Bangladesh. His father then disappeared and he was under a warrant of arrest.

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 16 December 2016 (“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 a hearing was fixed for him on 20 April 2018. However, he was absent. The Adjudicator assessed his appeal on the evidence available to him.

7.By Decision dated 20 April 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 since the applicant did not attend the hearing, he was unable to evaluate the credibility of his claims [13]; that having taken into account that he did not seek protection immediately after arriving in Hong Kong and other factors, he attached no credence at all to his claim to have entered Hong Kong in search of international protection [17]; that he had not established a real risk of being persecuted, tortured or otherwise subjected to cruel, inhuman or degrading treatment of punishment in Bangladesh [21]; and that he could relocate to somewhere else in Bangladesh [22].

9.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.

10.In his affirmation in support of his application dated 9 August 2018, the applicant relied upon the following grounds:

a.  the Hearing Bundle was given to him shortly before the appeal hearing without translation;

b.  he was confused at the appeal hearing; and

c.  the Board had relied upon the source of news which is not officially recognized, hearsay or outdated.

DISCUSSION

The Board’s Decision

11.The applicant appeared before me. He said that the Immigration officer had given him 7 days to obtain the documents. But he was unable to obtain them. However, he did nothing within these 7 days. He confirmed that he did not attend the appeal hearing at the appointed time. He said that it would not be useful even if he attended because the result would be the same. He was able to read the Hearing Bundle himself but some parts of it he did not understand. He had got his friend to explain to him.

12.It is obvious that the Board refused his appeal on the basis that he had no factual basis in support of his claim. There is simply no merit in any of his grounds above.

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

CONCLUSION

14.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