Akon Monir v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL1797/2018

[2019] HKCFI 2216

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1797 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 to apply for judicial review against the decision of the Adjudicator 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 19 July 2013 illegally through China. He was arrested by police on 21 July 2013 and was referred to the Immigration Department on 22 July 2013. On 24 July 2013, he lodged his non‑refoulement claim.

3.In his statements given to the Director, he said that if he returned to Bangladesh, he would be harmed or killed his enemy, Kala Razzak (“KR”) who was affiliated to Awami League because he refused to give them money.  He ran a cosmetics shop in Bangladesh and he borrowed a loan from a finance company in June 2011. His business was quite good. But one day in December 2011 KR came with a group of people to his shop to demand payment of money. They carried with them weapons such as daggers. KR held a dagger at his throat and demanded 500,000 Bangladesh taka. He did not have that much of money. KR took away 100,000 taka and told him that he would come in a month’s time and collect the remaining 400,000 taka. A month later, KR came with a group of people with weapons. He did not have the money to pay KR. KR and his people beat him up and ransacked his shop. As a result, he suffered injuries of cuts in his limps and his shop was messed up. He moved to his friend’s place where he stayed for three to four months. Meanwhile, he was unable to pay interest to the finance company and he was on the wanted list of the police. He was arrested by police and was charged for failing to pay the loan to the financial company. He was detained for four months. He was then released. His friends advised him to leave Bangladesh for Hong Kong. He took the advice and came to Hong Kong.

The Director’s Decisions

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 7 October 2015 (“the Director’s Decision”) and Notice of Further Direction dated 13 April 2017 (“the Director’s Further Decision”), collectively called “the Director’s Decisions”, the Director rejected his claim for the reason that his claim was unsubstantiated.

The Board’s Decision

6.The applicant appealed to the Board and he attended a hearing before the Adjudicator 27 April 2017.

7.By Decision dated 13 August 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decisions.

8.The Board considered the applicant’s case and found that the applicant was not a reliable witness as in material aspects of the case, the information or evidence given by the applicant was not truthful [42]. The Board further said “This Board cannot base on such information/evidence to reach a decision in his favour. Therefore, his appeal is dismissed.”

9.The Board had also taken a fallback position. It said that if the information were accepted, it would still dismiss his claim because it found that his enemy did not have the resources to locate him all over Bangladesh and his fear of ill-treatment was unlikely to materialize [49]; that state protection was available to him [50]; that internal relocation was available to him [53]; that his allegation of torture fell outside the statutory definition of section 37U of the Ordinance [61]; that he did not face a genuine risk of being subjected to BOR 3 risk [66]; that his dispute with his enemy was a private matter, therefore not within the protection against Persecution risk under RC [70] and finally there was no evidence to show that he was subject to the BOR2 risk [74].

Application for leave to apply for judicial review

10.In his Form 86, the applicant applied for leave for judicial review of the Board’s Decision.

11.In his affirmation in support of his application dated 31 August 2018, the applicant relied upon the following grounds:

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

(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; and

(4)     the Adjudicator had relied upon hearsay information and outdated material in relation to COI.

DISCUSSION

The Board’s Decision

12.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 explained to him. He understood the Board’s Decision as he was assisted by his friend. I explained the Board’s findings above to him and asked if he had any comments. He did not have any comment.

13.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 has no factual basis for his claim. Those grounds above are quite irrelevant. Nevertheless, I shall deal with them.

14.Grounds (1) to (3) fail as they are inconsistent with what the applicant said before this Court.

15.Ground (4) does not assist him. It is his opinion without any evidence in support of it.

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 to apply 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 16^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