Kamal Shahidul Islam v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL1184/2018

[2019] HKCFI 947

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1184 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 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. He came to Hong Kong as a visitor and was permitted to stay until 2 March 2015. He overstayed without the Director’s permission. He surrendered to the Immigration Department on 5 March 2015. He lodged his non-refoulement claim on 7 May 2015.

3.He claimed that if he was repatriated to Bangladesh, he would be extorted, ill-treated or killed by Chanchal, Mamum and Rubel, who were supporters of the Awami League.

4.In his statements given to the Director and the Board, he said that he used to run a shop selling sewing machines in Bangladesh. In February 2014, he said three men together with other three people came to his shop and demanded one million Taka from him. He refused to pay them. They slapped his face and threatened to kidnap him if he did not pay in five days. They brought with them pistol and iron rods. He closed his business and hid himself up. But he received threat calls from time to time. In May 2014, he obtained a visa to come to Hong Kong. But he was unable to move as he had to undergo an operation on his heart. In February 2015, he came to Hong Kong for non-refoulement protection.

The Director’s Decision

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 22 September 2017, the Director refused his application for the reason that his claim was unsubstantiated.

The Board

7.The applicant appealed and he attended a hearing before the Adjudicator on 25 April 2018.

8.Having considered the evidence, the Board found:

“69. … … there are no grounds that suggest the Appellant will be subject to significant harm for any reason if he returns to Bangladesh.

70. … …the Appellant does not face a real chance of serious harm amounting to persecution now or in the foreseeable future.

72. For the above reasons, based on the gaps, inconsistencies and other problems with the evidence, having carefully assessed the Appellant’s claim, the Board rejects them, both individually and cumulatively, in their entirety.”

9.By Decision dated 11 June 2018 (“the Board’s Decision”), the Board refused the applicant’s appeal and confirmed the Director’s Decision.

Application for leave for judicial review

10.By Form 86 dated 25 June 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 25 June 2018, he set out the reasons in support of his application in a narrative form. I shall summarize his specific grounds below:

(1)  the hearing bundle was delivered to him shortly before the appeal hearing and he did not have sufficient time to prepare for the hearing;

(2)  the hearing bundle was in English, which he had difficulty in understanding; but he was not provided with the service of an interpreter;

(3)  he was confused at the hearing; and

(4)  the Board had relied upon hearsay information and outdated material in relation to the Country of Origin Information in its assessment of his situation.

DISCUSSION

The Board’s Decision

12.As the applicant’s claim is fact sensitive and since the Adjudicator rejected his allegations, he had no factual basis in support of his non-refoulement claim.

13.As to grounds (1) to (3), the applicant appeared before me. He confirmed that he was assisted by his friend on the contents of the Hearing Bundle and that he was not confused at the appeal hearing. He had no complaint against the Adjudicator or the interpreter. These grounds fail.

14.As to ground (4), it is only his opinion, unsubstantiated by evidence.

15.I find that the applicant was unable to show that his proposed judicial review has any reasonable chance of success.

CONCLUSION

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

Dated the 16^th day of April 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