Akhil Sarker v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1595/2018

[2020] HKCFI 962

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1595 of 2018

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.The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 12 July 2019.

The applicant

2.The applicant is a Bangladeshi national. He came to Hong Kong on 24 April 2006 as a visitor and was permitted to stay until 8 May 2006. He overstayed. He made an application for asylum with United Nations High Commissioner for Refugees (“UNHCR”) and was rejected. On 21 November 2013, he was intercepted by police and was referred to the Immigration Department. On 27 and 28 November 2013 he lodged a non-refoulement claim. On 22 July 2014, he applied to withdraw his application. On 6 August 2014 he applied to restore his application.

3.In support of his claim, he said that if refouled, he would be harmed for reason of his support for the Awami League (“AL”) and his Hindu faith.

4.He was a Hindu and was always subjected to discrimination of the Muslim majority. In 2001, he was beaten up by a group of about 16 people of the Bangladesh Nationalist Party (“BNP”). They used stick and hands to hit him. He did not report this matter to police, which was far away from where he was. In February 2006, some five years later, he met three or four of those BNP people. They slapped his face and threaten to kill him. He moved to live in his friend’s house. His father arranged for him to leave Bangladesh for Hong Kong in April 2006.

The Director’s Decision

5.He had made a claim on torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) and was rejected. The Director considered his application in relation to the following risks:

a.     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”);

b.     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

c.     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”).

6.By Notice of Decision dated 24 November 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

7.The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 21 March 2018.

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

9.The Board considered the applicant’s evidence. It did not reject his evidence wholesale. However, for the reasons set out in the Board’s Decision came to the facts below.

a.     The applicant was attacked in 2001. However, his position in AL was low and hid activities were very limited [44].

b.     The BNP supporters’ threats to kill him were not intended to be acted upon [45].

c.     The second incident in 2006 was not plausible [46 & 47].

d.     The threat to kill him was exaggerated by the applicant [48].

e.     The Board did not accept that with his low position in AL, the BNP people were interested in him [50].

f.     The applicant had withdrawn his application but restored it 15 days later and the circumstances were suspicious as he was unable to supply details in relation to his father’s death or murder [51].

g.     The Board did not accept the applicant’s family was threatened by BNP or that his father was murdered by the BNP people [54].

Application for leave to apply for judicial review

10.He filed Form 86 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation, he only said that it was not safe for him to return to his own country.

DISCUSSION

The Board’s Decision

12.The applicant appeared before me and he confirmed that he was able to speak freely and tell his stories fully before the Board.

13.I put those findings to him and asked him for his comments. He said that he had no comments.

14.It is clear that the Board rejected the main facts in support of his claim.

15.The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review. However, there is no evidence to show that the Board has committed any error in coming to its decision.

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

CONCLUSION

17.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 28^th day of May 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