Lal Miah v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL1926/2018

[2019] HKCFI 2217

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1926 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”) and The Director of Immigration (“the Director”).

The applicant

2.The applicant is a Bangladeshi national. He arrived in Hong Kong illegally on 12 July 2015. He surrendered to the Immigration Department on 14 July 2015. He lodged his non‑refoulement claim on 24 November 2015.

3.His reason for his application is that if he was refouled to Bangladesh, he would be killed by the members of the ruling party, Awami League (“AL”) because he was associated with their opposition party, Bangladeshi Nationalist Party (“BNP”).

4.In his statements given to the Director and the Board, he claimed that the AL people attacked him since 2008 at an assembly. They attacked him with stone and cleavers. He suffered minor injury on that occasion. At the end of 2008, the AL people came to his business place and vandalized it. They also stole the properties there. The next day, the applicant’s father went to the business place. He was attacked by the AL people. His father later died. He moved to another town. In an assembly towards the end of 2014, he was attacked by the AL people with hockey sticks and stone. He reported the matter to police. But the police did not register his complaint because AL was the ruling party. He decided to go to Australia through India and China. He went to China and boarded a boat, thinking that he was going to Australia. However, he was taken 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.     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”).

6.By Notice of Decision dated 20 December 2017 (“the Director’s Decision”), the Director rejected his 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 15 August 2018.

8.By Decision dated 3 September 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s case carefully. In the Board’s Decision, the Adjudicator recorded that the applicant was unwilling to answer any questions to be put to him by the Adjudicator. He wanted to stick to the information he had given to the Director [32]. He maintained this stance, saying that he was not mentally able to answer questions, despite the Adjudicator told him that he had some clarifications for him and that if he did not clarify those issues, the Adjudicator was unlikely to accept his evidence [33]. The Adjudicator did not accept that he had any medical condition as there was no medical evidence before him. He then warned himself that it was the applicant’s right not to answer any questions, which should not be taken as aversive to his credibility. The Adjudicator, however, had to assess his case without his information. He then set out those questions which he intended to ask the applicant to clarify for him and also the issue of state protection. Those questions are reasonable and justified for clarification for the finding of the facts of the applicant’s claim [34]. Having considered the evidence available, the Board found:

“36. I have considered the claims of the Appellant individually and cumulatively, as well considering the personal circumstances of the Appellant. On the credible evidence before me, I do not consider the Appellant faces a real risk of Proscribed Harm Awami League supporters or the Bangladesh authorities if the Appellant is refouled to the Risk State.

37.     Other than his claims related to fear of Proscribed Harm due to his claimed political opinion, the Appellant has not raised another basis for non-refoulement.”

Application for leave to apply for judicial review

10.In his Form 86 under Order 53, rule 4 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.

11.In his affirmation in support of his application dated 13 September 2018, the applicant relied upon the following grounds:

a.     the Director’s Decision and the Board’s Decision are unfair and unreasonable;

b.     the Director failed to give sufficient weight to his argument; and

c.     the director failed to attain high standard of fairness.

DISCUSSION

The Director’s Decision

12.The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [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.”

13.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

14.The applicant appeared before me. He confirmed that he refused to give evidence before the Board and he had no complaint against either the Immigration officer or the Adjudicator. He considered that he had had a fair hearing before the Board.

15.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.

16.All of his grounds above are his opinions without any evidence in support of them. They do not sustain. He had chosen not to cooperate with the Adjudicator. He has no ground to complain.

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

CONCLUSION

18.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 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