Mazhi Md Mijan v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL1742/2018

[2019] HKCFI 2226

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1742 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 respective decisions of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.The applicant is a Bangladeshi national. He arrived in Hong Kong on 10 January 2016 illegally and was arrested by police on the same day. He lodged a non-refoulement on 15 January 2016.

3.In his statement given to the Director and the Board, he claimed that if he was returned to Bangladesh, he would be ill-treated or even killed by the Awami League (“AL”) people. He was an active member of the Bangladesh Nationalist Party (“BNP”). In 2010, the AL people approached him and demanded money from him. They threatened him with weapons. One of them pointed a pistol at his head. He complained to the police who took no action. He moved around places to avoid them. He learned that police had filed a false criminal case against him, accusing him of terrorist activities. He had been to India and Sri Lanka and returned to Bangladesh. In 2016, he left Bangladesh for China and from there he came to Hong Kong illegally.

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.  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 under RC”).

5.By Notice of Decision dated 20 January 2017 (“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 he attended a hearing before the Adjudicator on 13 June 2018.

7.By Decision dated 7 August 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

8.The Board considered the applicant’s case carefully, bearing in mind all the cautions that the Board should do as guided by the courts in the authorities for this type of cases and found that his evidence given to the Director and to the Board was so inconsistent and without reasonable explanation that it finally rejected all his evidence as the Board said:

“51. There appears to be no dispute the appellant is a national of Bangladesh, but beyond that I find none of his claims can be given any credence whatsoever.”

9.In his Form 86 under Order 53, rule 3 of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decision and the Board’s Decision respectively.

10.In his affirmation in support of his application dated 27 August 2018, the applicant relied upon the following grounds:

(1)  procedural impropriety: the Director and the Board had committed errors of law and misdirection in law; the Board having failed to consider the case afresh, using the Country of Origin Information to assess the case;

(2)  irrationality: the Director and the Board failed to consider the extended concept of state acquiescence.

DISCUSSION

The Director’s Decision

11.The Court of Appeal in Re: Moshsin Ali CACV  4/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

12.The applicant’s application for leave for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

13.The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. Their respective Decisions had been explained to him by his lawyer and his friend. He considered that he had had a fair hearing before the Board.

14.It is obvious that as the Board rejected all of his evidence on the facts of his case, he has no factual basis in support of his claim.

15.Grounds (1) and (2) are his opinions without any evidence in support of them. They fail.

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

CONCLUSION

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

Dated the 6^th day of September 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