Howladar Nazrul v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL 1799/2018

[2019] HKCFI 2635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1799 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:

THE APPLICATION

1.This is the applicant’s application for leave 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 on 18 March 2015 through China. He lodged his non-refoulement claim on 15 September 2015.

3.His reason for his application is that he would be ill-treated by his opponents who are a group of extortionists if he is returned to Bangladesh. He also worried that he would be arrested by the Bangladesh police for a murder case in Bangladesh.

4.In his statements given to the Director and the Board, he claimed that in 2010 he was running a garment business. One day in April 2011, he was approached by four to five young men, who demanded money from him. He did not have that much money as demanded. They told him that he had to pay the money later or he would be in danger. He learned from his friend that these people were from Kala Jahangir (“Kala”), an extortion organization. Since then, he received threat calls from them demanding money. He was unable to pay. One day in May, 2011, he was chased into a narrow path, where he was hit by the men. He picked up an iron rod and hit one of them and he escaped. He learned that that person he hit died and police looked for him for murder charge. He left the place he lived and moved to another district. In August 2011, he was abducted by about twenty people to a room where he was hit and kicked. He was also stabbed by knives on his left arm and left side of his neck. He was detained there for two days. He managed to escape through the window. He went to his friend and treated his wounds by painkillers. It took four to five months for recovery. Finally, he took his friend’s advice and went to China where he met a Chinese friend and where he stayed for about three years. He learned that the Kala people had located him. So he came to Hong Kong for protection.

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 28 April 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was not substantiated.

The Board

7.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 25 July 2018. Unlike other similar cases, the applicant was legally represented by the same lawyer who had appeared before the Immigration officer at the screening. The Immigration Department was also represented by government counsel too. ^[1]

8.By Decision dated 23 August 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s case and found that his intention of seeking protection in Hong Kong is suspicious as he had a Chinese friend in China where he had stayed for about three years [55]; that it is also suspicious that the Kala group only demanded him money after he had started his business for five years [56]; that he should have released more details to the Immigration officer in relation to the murder case instead of releasing the information upon cross-examination [58]; and that it is suspicious that the murder charge only came from his mother and his friend, which is hearsay evidence [59 &60].

10.The Board at paragraph 64 of its Decision said:

“On the totality of evidence, I am not persuaded, even to the low standard applicable, that the extortion incidents, the detention incident and the murder charge are as he claims to be.”

11.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.

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

1.  the Director and the Board were unfair and unreasonable in making their Decisions;

2.  the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence in support of his case;

3.  the Director failed to consider state acquiescence and that the state should exercise due diligence to provide reasonable protection for its citizens;

4.  the Director failed to consider the applicant’s argument before making his Decision;

5.  the Director failed to give sufficient weight to the Country of Origin Information in support of his case; and

6.  the Director failed to give sufficient weight to the corrupt and incompetent administration of his state.

DISCUSSION

The Director’s Decision

13.In the decision in Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision.

14.The applicant has not set out any exceptional circumstances.

15.Also, 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.”

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

The Board’s Decision

17.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. He considered that he had had a fair hearing before the Board.

18.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.

19.All of the above grounds except Ground (2) are his opinion without any evidence or particulars in support of them. They fail.

20.As to Ground (2), it is inconceivable for this to happen as he was legally represented by a lawyer at the Board. His lawyer should be able to handle this issue for him. He has not been able to say what evidence he intended to adduce. This ground also fails.

21.The applicant fails to show that he has 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 judicial review. Accordingly, I dismiss his application.

Dated the 25^th day of October 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

[1] See § 28 of the Board’s Decision