Uddin Miha Jalal v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL1081/2018

[2019] HKCFI 623

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1081 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 an application taken out by the applicant pursuant to Order 53, rule 3 (2) of the Rules of the High Court (“RHC”) 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 as interested party (“the Director”).

2.The applicant requested a hearing.  The hearing was fixed at 10:00 am on 5 December 2018.  However, the applicant was absent on that day.

3.By an Order dated 5 December 2018, this Court dismissed his application for want of prosecution.

4.Pursuant to Order 59, rule 2B(1) RHC, the applicant filed a summons on 17 December 2018 to seek leave to appeal against the said Order to the Court of Appeal.

5.On 19 December 2018, this Court gave directions that a hearing be fixed at 10:00 am on 24 January 2019 and the applicant should file an affirmation to state his reasons for his absence on 5 December 2018 within 7 days from the date of the directions.

6.The applicant failed to comply with my directions. I requested the applicant to state his reasons before me. He took oath to say that he did not receive the letter. The letter-box was an open box and it is possible that the letter was taken away by someone else. He has no reason not to pursue the matter.

7.I am satisfied with his explanation for his absence on 5 December 2018.

8.Under Order 32, rule 6 of the RHC, this Court has the jurisdiction to set aside an order made ex parte.  Pursuant to Order 1A, rule 1 and Order 1B, rule 1(2)(l) RHC, I shall now treat the applicant’s application as an application to set aside the order which I made on 5 December 2018 dismissing his application.  The said order is now set aside.

9.I shall now consider the applicant’s application for leave for judicial review of the Board’s Decision.

The applicant

10.The applicant is a Bangladeshi national, who came to Hong Kong through China illegally and was arrested by the police on 6 September 2014.  He was referred to the Immigration Department for investigation on 9 September 2014. On 10 September 2014, he lodged his non-refoulement claim. He was released on his own recognizance on 10 October 2014. He claimed that if he was refouled to Bangladesh, he would be harmed or even killed by the people of the Awami League (“AL”).

11.In his statements given to the Director and the Board, he said that he belonged to a political group Jamaat-e-Islami, a rival to AL, which tried to recruit him and he refused. In 2013, there had been three occasions where AL people had attacked his political group of people. He was not hurt. Finally, he decided to come to Hong Kong through China and so he did.

The Director’s Decision

12.By Notice of Decision dated 15 November 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was unsubstantiated.

The Board

13.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 26 March 2018.

14.Having considered his evidence, by Decision dated 1 June 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

15.The Adjudicator found that:

(1)  he had given inconsistent versions of the incidents of attacks to the Director and to the Board [48 & 49];

(2)  he was neither a credible nor a reliable witness [87];

(3)  the Board was not satisfied about both the internal inconsistency and external consistency of his case [88]; and

(4)  he failed to establish his case within the context of the relevant risks stated above [89-94].

Application for leave for judicial review

16.By Form 86 dated 13 June 2018, under Order 53, rule 3(2) RHC, the applicant applied for leave for judicial review of the decision of the Adjudicator of the Board.

17.In his affirmation in support of his application filed on 13 June 2018, he set out his grounds in support of his application as below:

(1)  the hearing bundle was given to him shortly before the hearing;

(2)  the hearing bundle was in English and he was not provided with translation or interpreter; and

(3)  he was confused at the appeal hearing;

DISCUSSION

The Board’s Decision

18.The applicant appeared before me and he confirmed that he had had a fair hearing before the Adjudicator and he had no complaint about him.

19.I had put the Board’s comments to him and ask him if he had any comments himself. He said that he had no comments.

20.In the circumstances, all the above grounds are unsubstantiated. They do not support his application.

21.I find that the applicant is unable to show that there is any reasonable chance of success for his intended judicial review.

CONCLUSION

22.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the judicial review and I dismiss his application.

Dated the 15^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