Rahman Izazur v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 2399/2018

[2019] HKCFI 2838

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2399 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 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 came to Hong Kong on 11 February 2013 was permitted to stay as a visitor until 25 February 2013. He overstayed and was arrested by police on 11 March 2015. He was referred to the Immigration Department for investigation. On 13 March 2015, he lodged a non-refoulement claim.

3.The applicant claimed that if refouled, he would be harmed or even killed by a person called Kalam and other people of the Awami League (“AL”) because he was a supporter to the rival Bangladesh Nationalist Party (“BNP”) and he refused to join the AL.

4.He claimed that between 2009 to 2011, he had been harassed by the AL people. He ran a shop in Ashtagram Bazzar, Bhai Bhai Market, Brahmanbaria. The AL people threatened him that if he refused to join them, they would kill him. In winter in 2009, they came to his shop and assaulted him with hockey sticks, damaging his goods and furniture inside the shop. He had suffered injuries of bruises in his body. The police came and arrested Kalam and some other people. In 2011, the AL people held a meeting near his shop. There was a fracas between them and the BNP people. At that time, he was in Dhaka. His employees were injured and the AL people burned down his shop. His shop was closed. Since this incident, he did not return to his shop and he arranged for coming to Hong Kong through an agent.

The Director’s Decisions

5.The Director considered his application only 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 April 2018 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was unsubstantiated.

The Board

7.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 30 August 2018.

8.By Decision dated 22 October 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s evidence and found the facts below.

a. The AL’s threats, if existed, were only confined to his local area [106]

b. The Bangladesh government was not interested in him since he could get his passport [107].

c. He did not face a high risk of harm if he returned [108].

d. The government was not involved, so there was no question of consent or acquiescence of a public official of the government [134].

e. The Country of Origin Information showed that the Bangladesh government would be able to provide protection to him. [138]

f. The option of internal relocation was open to him [139 & 143].

Application for leave to apply for judicial review

10.In his Form 86 dated 30 October 2018 under Order 53, rule 3 of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant said that he did not understand what happened at the appeal hearing because the hearing bundle was not given to him early and there was no interpretation for him. He was confused at the hearing. However, he answered all questions put to him honestly.

DISCUSSION

The Board’s Decisions

12.The applicant appeared before me. He confirmed that he had been able to speak freely and tell his stories fully to the Immigration officer and the Adjudicator. His lawyer had explained the Director’s Decisions to him. He could read English himself. He understood the hearing bundle and the Board’s Decision.

13.The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14:

“13. Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….

14.   Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.”

14.I put the facts found by the Board to him for his comments. He said that he had no comments on them.

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

CONCLUSION

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

Dated the 21^st day of November 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