Karim Md Razaul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 1587/2018

[2020] HKCFI 73

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1587 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 illegally on 16 June 2014. He was arrested by police on 18 June 2014. He lodged his non-refoulement on 19 June 2014. He claimed that if he was returned to Bangladesh, he would be harmed or killed by the people of Awami League (“AL”) and the Jubo League (youth arm of the AL) as he was a member of the Bangladesh Nationalist Party (“BNP”) because he had hindered Mr. Isha in holding the post of “Village-level General Secretary” in the Jubo Dal.

3.In his statements given to the Director and the Board, he said that he was a BNP supporter and the General Secretary at the village level in his own village, Dhaka. In 2011, he went to Singapore to work and returned in 2013. During his absence, Mr. Isha was the Acting General Secretary. Mr. Isha was not happy that he had not relinquished his post so that he would be put in his position. Mr. Isha was a AL supporter. In 2013, Mr. Isha’s people attacked him with knives and there was a fight as his friends joined in to help him out. He managed to escape, but had injuries of cuts in his hands and legs. Shortly afterwards, he learned that one of his friends who had helped him had been killed by Mr. Isha’s people. He moved around in different places in 2014. His friends advised him to leave Bangladesh for Hong Kong. He took the advice and came here.

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. 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 22 March 2016 and Notice of Further Decision dated 9 June 2017, collectively called (“the Director’s Decisions”), the Director rejected his claim for the reason that his claim was not substantiated.

The Board

6.The applicant appealed to the Board and attended a hearing before the Adjudicator on 6 July 2018.

7.By Decision dated 31 July 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decisions.

8.The Board stated in the Board’s Decision that it accepted that the applicant was a BNP supporter. However, having considered the evidence overall, the Adjudicator found that the events as stated by the applicant did not amount to torture within the context of section 37U(1) of the Immigration Ordinance, Cap 115 [84]; that there was no government official involved [89 & 127]; that she did not accept that he would be subjected to torture after his return to Bangladesh [94 & 130]; that internal relocation was an option open to him [139]; that there should be no fear of capital punishment in his own country [144]; and his case did not warrant non-refoulement protection on the ground of Persecution risk under RC [153].

9.By Form 86 dated 8 August 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 Director’s Decisions and the Board’s Decision.

10.In his affirmation in support of his application dated 8 August 2018, the applicant relied upon the following grounds:

1. the Director and the Board had reached their wrong decisions, which are unreasonable;

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

3. the Director had not considered state acquiescence;

4. the Director failed to take his argument into consideration;

5. the Director failed to appreciate that his country was incompetent in its administration and corrupt; and

6. the Director failed to maintain a high standard of fairness.

DISCUSSION

The Director’s Decisions

11.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 has wider power than this Court to make investigations in the matter. The Board had heard his appeal and made its Decisions.

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

13.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

14.The applicant appeared before me. He confirmed that he considered that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. The reasons in his affirmation were prepared by his friend’s lawyer. He did not tell the lawyer that the Adjudicator did not give him time and chance to adduce further evidence.

15.The reasons given by the Board above speak for themselves.

16.Grounds (1), (3) to (6) are his opinion without any evidence to support. They fail.

17.Ground (2) is not true according to himself.

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

CONCLUSION

19.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.

20.Whilst preparing this decision, 1 received the applicant’s application for withdrawing this application. However, since I dismiss his application, it is not necessary to deal with his application for withdrawal.

Dated the 3^rd day of January 2020

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