Ruhul Quddus Swaphan Alias S Kuddus Alias Ruhul Quddus Swapan v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1831/2018

[2020] HKCFI 1532

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1831 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 of the Decisions dated 31 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 attended the hearing on 13 December 2019.

3.Leave was granted to the applicant to amend Form 86 by deleting the Board and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is a Bangladeshi national. He had a chequered history of coming to Hong Kong under various names in his passport and having been removed between 1993 and 2003. His last entry into Hong Kong was on 9 April 2003 and was permitted to stay as such until 23 April 2003. He overstayed for six years and surrendered himself to the Immigration Department on 16 July 2009. He lodged a Torture claim protection, but his application was rejected by the Director in 2012. He appealed to the Petition Team of Security Bureau and his petition was rejected on 15 February 2012. He lodged his non‑refoulement claim on 13 March 2014.

5.He claimed that if refouled, he would be harmed or even killed by his creditor, who is his cousin and his cousin’s two elder brothers. Besides, when he stayed in Hong Kong, he hit his Bangladeshi countryman called Jamil. He was in fear that Jamil would take revenge against him if he returned to Bangladesh.

6.He had borrowed money from his cousin and was unable to repay his debts. His cousin’s elder brothers sent some people, 5 or 6 to attack him with knife and sticks. He was injured. He moved to live in Karachi in Pakistan for five years. He was scared and he came to Hong Kong.

7.Whilst in Hong Kong, he lived with Jamil. They shared the room. However, they had disputes and they fought each other. He hit Jamil on his head and injured him. He was arrested. Jamil had returned to Bangladesh. Jamil had said that if the applicant returned to Bangladesh, he would kill the applicant.

The Director’s Decision

8.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”).

9.By Notice of Decision dated 17 October 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risk as he claimed was low [18]; that state protection was available to him [29] and internal relocation was an option open to him [32]. His claim under BOR2 risk was not established.

The Board’s Decision

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

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

12.The Board considered the applicant’s evidence and found that there was a possibility that one or both of his enemies might go after him if he was refouled, but there was insufficient evidence to show that there was a substantial risk that they would do so, or that they would inflict on him death, CIDTP or persecution. See §§52-67 of the Board’s Decision.

Application for leave to apply for judicial review

13.The applicant filed Form 86 on 4 September 2018 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

15.The applicant appeared before me. He confirmed that he was treated fairly when he appeared before the immigration officer and the Adjudicator of the Board. He can read English himself.

16.I put the Board’s findings to him and asked him if he had any comments on them. He said that he did not agree with the Adjudicator. However, he was unable to state any concrete reasons in support of his argument.

17.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.

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

CONCLUSION

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

Dated the 13^th day of July 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