Case Document

100%Judiciary

HCAL 1217/2018

[2019] HKCFI 2534

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1217 of 2018

BETWEEN

	Mastofa Mohammad Golam	Applicant
	and
	Director of Immigration	1^st Putative Respondent
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	2^nd Putative Respondent

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:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review against the respective decisions of the Director of Immigration (“the Director”) and the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

The applicant

2.The applicant is a Bangladeshi national. He came to Hong Kong illegally on 30 October 2014 and was arrested by police. He was referred to the Immigration Department for investigation. On 2 November 2014, he lodged a non-refoulement claim with the Director.

3.He claimed that if he was repatriated to Bangladesh, he would be in fear of being harmed or even killed by members of the Awami League (“AL”) because he was a member of Jamaat-e-Islam (“JEI”).

4.In his statements given to the Director and the Board, he said that he joined the JEI, a rival party to AL, in 2004. He had asked people to boycott AL in the 2014 General Election. He was threatened by the AL people to stop participating the activities of JEI. There were 9 people on that occasion. At the General Election, he saw AL members committing false stamping on ballots papers. About 6 months later, the AL people came to his home with sticks and attacked him, causing bruising on this body. He moved to live in his uncle’s home for about 6 days. He then returned home and met the AL people again. They threatened him with death. He moved to his father-in-law’s home where he stayed for 2 months. Bablu of the AL called him to return to his home town where they might kill him. In October 2014, he came to Hong Kong.

The Director’s Decisions

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 18 June 2015 (“the Director’s Decision”) and Notice of Further Decision dated 30 June 2017 (“the Director’s Further Decision”), collectively called (“the Director’s Decisions”), the Director refused his application for the reason that his claim was not substantiated.

The Board

7.The applicant appealed to the Board. He attended a hearing on 5 March 2018 before the Adjudicator.

8.By Decision dated 5 June 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decisions.

9.The Adjudicator had considered the applicant’s evidence and stated in the Board’s Decision that because state protection was available to the applicant and that he could relocate himself, the applicant failed in all the claims on the above risks. See §§ 19, 24, 25, and 30. The Adjudicator had also commented the applicant’s honesty in the Board’s Decision:

“36. Because the Appellant said he ‘did not think the boat trip into Hong Kong was unlawful’ I find he was being dishonest to this Appeal Board because under the circumstances it was simply inconceivable that he did not know. After listening to the Appellant I find him dishonest and unreliable….”

Application for leave to apply for judicial review

10.By Form 86 dated 28 June 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the decisions the Director and the Adjudicator of the Board respectively.

11.In his affirmation in support of his application dated on 27 June 2018, he set out the reasons in support of his application below:

(1)     the Director had not given sufficient consideration to state acquiescence as there was collusion between the police and the high ups of political circles before reaching his determination;

(2)     the Director had failed to give appropriate weight to the Country of Origin Information (“COI”) in favour of his case;

(3)     the Director only selected the COIs which suited his pre-occupied opinion;

(4)     the Director has therefore failed to maintain high standard of fairness;

(5)     the Board had not made sufficient enquiry into the matter;

(6)     the Adjudicator required him evidence without appreciating that he was unable to do so;

(7)     the Board had failed to give the applicant sufficient chance to arrange evidence to prove his case.

DISCUSSION

The Director’s Decisions

12.In my view, the applicant is not entitled to apply for judicial review of the Director’s Decisions without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decisions and this Board was created by the legislature, with wider power than this court to make investigations in the matter. The Board had heard his appeal and made its Decision.

13.Also, in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, the Court of Appeal held that the board’s decision is final [42] and is not susceptible to judicial review [45].

14.Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

15.For the reasons above, I dismiss the applicant’s application for leave to apply for judicial review of the Director’s Decisions.

The Board’s Decision

16.Upon request, this Court heard the applicant. The applicant confirmed that he had no complaint against the immigration officer, the Adjudicator or the interpreters. He considered that he had had a fair hearing before the Board.

17.It is quite obvious that the Board turned down his appeal on the facts of his case. In the circumstances, the applicant simply has no factual basis in support of his claim.

18.Grounds (1) to (5) are his opinions and comments without any evidence to support. They fail.

19.Ground (6) also fails as the Adjudicator was entitled to require the applicant to adduce evidence to prove his case. If the applicant had any difficulty in getting the evidence, he could have told the Adjudicator, who would make the arrangement in the hearing.

20.The applicant was unable to say what evidence what he intended to arrange. In the circumstances, ground (7) fails.

21.Having considered the reasons above, I find that the applicant does not have a reasonable chance of success in his proposed judicial review.

CONCLUSION

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

Dated 16^th day of October 2019

	(Mike Mak)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 16/10/2019 Mastofa Mohammad Golam Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 16/10/2019 Director of Immigration 1^st Putative Respondent’s ref. no.: QA T/C 1237/14 & RBCZ 9001872/17 (formerly RBCZ 3068/14) Torture Claims Appeal Board / Non-Refoulement Claims Petition Office 2^nd Putative Respondent’s ref. no.: USM 1804/15/6/190/B249 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)