Hossan Md Sanowar v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1838/2018

[2020] HKCFI 1535

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1838 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 Decision dated 28 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

The applicant

2.The applicant is a Bangladeshi national. He came to Hong Kong on 23 March 2015 illegally. He surrendered to the Immigration Department on 24 March 2015. He lodged his non-refoulement claim on 25 June 2015.

3.He claimed that if refouled, he would be killed by the Awami League Party members.

4.The relevant incidents took place as set out below.

a. His father and he were supporters of the Bangladesh Nationalist Party (“BNP”), the ruling party between 2001 and 2006.

b. As from 2009, the Awami League (“AL”), the rival party of BNP won the election and became the ruling party since December 2008. The AL members attacked the supporters of BNP.

c. In January 2014, one of his friends was brutally attacked. His head fractured. He had to be hospitalized. A few days later, he was attacked by AL members with bamboo sticks. He sustained injuries with bruises and swellings all over his body. They threatened him with death and left.

d. He reported to police. The police did not register the case.

e. He was also falsely charged by police with a murder case and another assault case.

f. Out of fear after the attack, he moved to stay in various places. His friends advised him to go to India and then China. He accepted their advice.

5.The Director considered his application in relation to the following risks:

a. torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);

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”).

6.By Notice of Decision dated 23 May 2018 (“the Director’s Decision”), the Director rejected his claim for the reason that it was unsubstantiated. The Director found that there were no substantial grounds for believing that there would be any real risk of him being harmed or killed by his enemy upon his return to Bangladesh [11]; state protection would be available to him [12] and internal relocation was an alternative open to him [19].

The Board’s Decision

7.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 22 August 2018.

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

9.The Board considered the applicant’s evidence and whilst it did not reject all his evidence, it did not accept the evidence in support of his claim [17]. The Board considered that since it did not believe the applicant’s evidence in support of his claim, it was not necessary to consider relocation. Nevertheless, it agreed with the Director’s view on relocation [195-198]

Application for leave to apply for judicial review

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

11.In his affirmation in support of this application, the applicant did not set out any errors committed by the Board in coming to its decision. He simply asked this Court to allow him to apply for judicial review of the Board’s Decision.

DISCUSSION

12.The applicant appeared before me and he confirmed that he was free to express his views before the immigration officer. His duty lawyer had explained the Director’s Decision to him. His friend had explained the Board’s Decision to him.

13.I put the Board’s findings to him and asked him if he had any comments on them. He said that he had no comments.

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

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

CONCLUSION

16.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 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