Case Document

100%Judiciary

HCAL 1691/2018

[2020] HKCFI 1208

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1691 of 2018

BETWEEN

	Miah Mohammad Sahin	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 Applicant being absent 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 of the Decision dated 7 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.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, 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 did not attend the hearing scheduled on 3 January 2020. I shall proceed to consider his application on paper.

The applicant

3.The applicant is a Bangladeshi national. He came to Hong Kong on 17 July 2014 illegally through China and was arrested by police on the same day. He was referred to the Immigration Department on 20 July 2014. He lodged his non-refoulement claim on 22 July 2014 by written representation.

4.He claimed that if refouled, he would be harmed or even killed by members of the Awami League Party (“AL”), which was the ruling party as he was involved with the Bangladesh Nationalist Party (“BNP”), its rival party, and he refused to quit BNP to join AL.

5.In 2012, he was invited by an acquaintance to quit BNP and join AL. He refused. He was threatened and later, this acquaintance took several people armed with wooden sticks to his shop where he was. They attacked him and vandalized his shop. He was injured with swelling all over his body. He reported the matter to police. Police did not take further investigation. Shortly thereafter, those people came to the shop and attacked him with wooden sticks and iron rods. He reported the matter to police again. He hid himself up in order to avoid those people. His father advised him to leave Bangladesh. He took his father’s advice and left for Hong Kong.

The Director’s Decision

6.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”).

7.By Notice of Decision dated 23 January 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that there were no substantial grounds for believing that he would be harmed or killed by the AL people [13]; that state protection was available to him [16] and internal relocation was an option open to him [17]. His claim under BOR2 risk was not established.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 13 June 2018.

9.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

10.The Board considered the applicant’s evidence and found that the applicant was probably a witness of truth in relation to the factual background of his claim [29]; that the risk to him in his local area from non-state actors of harm in the form of local AL activists was far-fetched and fell below the level of real risk [33]; that, contrary to the Director’s decision, state protection would not be available to him [34-42]; and that internal relocation was reasonable and would not be unduly harsh for him to relocate outside his home area as he had previously successfully done [43-53].

Application for leave to apply for judicial review

11.The applicant filed Form 86 dated 21 August 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmations in support of his application, he did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

13.In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that 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 and the 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.There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

15.The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

16.I therefore refuse to grant leave to the applicant to apply for judicial review. Accordingly, I dismiss his application.

Dated the 17^th day of June 2020

	(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 the Applicant’s 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 17/6/2020 Miah Mohammad Sahin 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 17/6/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 5990/17/1/274/B736 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2769/16 (formerly RBCZ 2515/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)