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

HCAL2919/2018

[2019] HKCFI 1804

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2919 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and oral submission 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 to apply 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 interested party.

The applicant

2.The applicant is a Bangladeshi national. He arrived in Hong Kong on 18 May 2014 illegally. He was arrested by police on the same day. He was referred to the Immigration Department on 21 May 2014. On 24 May 2014, he raised the non-refoulement claim.

3.In his statements given to the Director and the Board, he said that if refouled, he would be harmed or killed by members or supporters of the Bangladesh Awami League due to political and other disputes.

4.He was a member of Chhartra Dal party, which is the student wing of the Bangladesh Nationalist Party, a rival party of the Awami League (“AL”). Since 2009, he had been attacked by the AL people on three occasions: (1) an arson attack on his father’s shop in January 2014; (2) threats and harassment of his extended family and (3) taking over and occupying the family home after his father could not repay a 2012 loan to his creditors.

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.  risk of persecution by 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”).

6.By Notice of Decision dated 20 October 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was unsubstantiated.

The Board’s Decision

7.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 20 August 2018.

8.By Decision dated 10 December 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s case and, having considered the inconsistencies between his evidence given to the Director and to the Board and the inherent implausibility of his evidence, it concluded:

“39. It was clear to me that during the course of the Hearing, the Appellant tried to embellish his story as it went along (as demonstrated above). Given the points I have made in paragraphs 37 and 38 above, I find the Appellant’s general credibility lacking to the extent that I am unable to attach any weight to his unsupported factual assertions.”

Application for leave to apply for judicial review

10.In his Form 86 dated 20 December 2018, under the applicant applied for leave for judicial review of the Board’s Decision. In his affirmation in support of his application, the applicant relied upon the following grounds:

(1)   the hearing bundle was given to him shortly before the appeal hearing without translation;

(2)   the contents of the hearing bundle were in English and he was unable to obtain interpreter service;

(3)   he was confused at the appeal hearing;

(4)   the Board failed to make the appropriate arrangement of the hearing bundle; and

(5)   the Board relied upon the Country of Origin Information which was outdated and hearsay.

DISCUSSION

The Board’s Decision

1.  The applicant appeared before me. He confirmed that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. He also confirmed that he understood the Director’s Decision as his lawyer had explained to him. His friend had assisted him with the hearing bundle and the Board’s Decision.

2.  I explained the Board’s findings in paragraph 9 to him and asked if he had any comments. He said that he had no comments on them.

3.  It is quite obvious that the Board did not accept the facts as stated by the applicant in support of his claim. Therefore, the applicant had no factual basis for his claim.

4.  The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549 held that the finding of facts by the Adjudicator was final [42].

5.  Grounds (1) to (4) fail as they are inconsistent with what the applicant said before this Court.

6.  Ground (5) is his opinion without evidence in support of it. It fails.

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

CONCLUSION

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

Dated the 22^nd day of July 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