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

HCAL1183/2018

[2019] HKCFI 1277

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1183 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 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 illegally on 1 December 2015 and was arrested by police on 5 December 2015 and was referred to the Immigration Department for investigation. He lodged his non-refoulement claim on 10 December 2015.

3.He claimed that if he was repatriated to Bangladesh, he would be harmed or even killed by Nabi Newaz, Abdur Rouf, Jahir and Nuruzzaman, the four leaders of the Awami League (“AL”) in his village.

4.In his statements to the Director and the Board, he stated that he was a member of the Bangladesh Nationalist Party (“BNP”) and because of this, he was approached by 16-17 AL people, including the said four leaders in 2011 and by 20-25 AL people, including the said four leaders in 2015 respectively. They went to his residence and asked him to convert and join AL. He refused and was beaten up on both occasions. In 2011 incident, he was beaten by sticks and was stabbed by a knife on his left leg and left arm. He was admitted in hospital for 12-14 days. In the 2015 incident, the AL people came with sticks and they broke the door and barged into his house. They threatened him with death. He paid an agent 250,000 Taka for his arrangement to come to Hong Kong.

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 17 October 2017 (“the Director’s Decision”), the Director refused his application for the reason that his non-refoulement claims was not substantiated.

The Board

7.The applicant appealed to the Board and attended a hearing on 16 March 2018 before the Adjudicator, who had put a lot of questions to him to test his evidence which he had given before the Immigration officer.

8.The Adjudicator had expressly taken the circumstances in relation to the applicant’s personal situations and the objective circumstances. At §75 of the Board’s Decision, he said:

“In making these findings, the Board has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked and has also taken into account the effect of the passage of time on his ability to recount his experiences…However, the Board does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the Appellant’s evidence on these matters was unreliable.”

9.The Board rejected the applicant’s evidence on the facts as alleged wholesale. As the risks above are fact sensitive, the natural consequence is that the Board rejected all the claims on the risks and confirmed the Director’s Decision. See paragraph 76-79 of the Board 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 not legally represented for the appeal before the Board; and

(4)  he was confused at the hearing.

DISCUSSION

The Board’s Decision

12.The applicant had appeared before me. He confirmed that his friend had explained to him the contents of the hearing bundle and the Director’s Decision before the appeal hearing and he had no problem with the Adjudicator’s questions. He had no complaint against the Adjudicator or the interpreter.

13.As the Adjudicator said in his Decision, the applicant’s claim depended on the credibility of his evidence. This is a matter for the Adjudicator who has the power of investigation. See Ali Haider CACV8/2018, [2018] HKCA 222 at §13. There is nothing amiss in the Adjudicator’s finding of the facts of the applicant’s claim.

CONCLUSION

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

Dated the 23^rd day of May 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