Case Document

100%Judiciary

HCAL 1775/2018

[2020] HKCFI 1365

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1775 of 2018

BETWEEN

	Mamun Abdullah Al	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 oral submission by the Applicant 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 24 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 CACV 8/2018, [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 attended the hearing on 29 November 2019.

3.Leave was granted to the applicant to amend Form 86 by deleting the words “USM” to be replaced by the Board as the respondent and adding the Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is a Bangladeshi national. He came to Hong Kong on 29 September 2015 illegally, the same day he was arrested by police. On 3 October 2015, he made his non‑refoulement claim by written representation.

5.He claimed that if refouled, he would be harmed or even killed by Mosharaf Hossain Tipu (“MHT”), the union president of the local Awami League (“AL”) and his people.

6.He and his family were BNP supporters. MHT people invited him to quit BNP and join AL. He refused. The MHT people threatened to kill him. They went to his home and threaten him and his father. They also demanded 200,000 Taka as protection money. He had no money to pay. They threatened him again. He moved to live in his cousin’s home for a period of time. On 5 May 2013, he joined a protest against the AL government for being incompetent. In the mid-night, the MHT people and police came to attack him and other people. People were killed. He managed to escape. He had been to various places, some of which he stayed for a period as long as nine months without any incidents. However, he learned from his family that the MHT people were looking for him. They threatened to kill him. His father advised him to leave Bangladesh for Hong Kong. He took his father’s advice.

The Director’s Decision

7.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”).

8.By Notice of Decision dated 29 December 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that that the risk he claimed would be low [49]; that state protection was available to him [75] and that internal relocation was an option open to him [82]. His claim under BOR2 risk was not established.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 26 April 2018.

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

11.The Board considered the applicant’s evidence and found that the applicant was not a witness of truth and rejected his evidence regarding his association with the BNP and his disputes with the AL; that the AL people approached him and asked him to join them [64]. It did not accept that he would face any form of harm upon return to his home country [65]. It found that he failed to establish any of the risks claimed. See paragraphs 67-70.

Application for leave to apply for judicial review

12.The applicant filed Form 86 dated 29 August 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation 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

14.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.

15.There is no reason that the Board’s Decision should be intervened by the court.

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

CONCLUSION

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

Dated the 7^th day of July 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 7/7/2020 Mamun Abdullah Al 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 7/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9821/18/1/94/B1121 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2727/17 (formerly RBCZ 13607/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)