Hossain Anowar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1883/2018

[2020] HKCFI 1555

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1883 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.The applicant applies for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 19 October 2018 (“the Board’s Decision”). He was absent on the hearing day on 27 September 2019. The Court decided to assess his case on the papers.

The applicant

2.The applicant is a national of Bangladesh.  On 28 June 2014, he came to Hong Kong illegally through China. On the same day, he was arrested by police. He lodged his non‑refoulement claim on 1 July 2014.

3.He claimed that if refouled, he would be ill-treated or killed by Khairul Majid Humayun because it was alleged that he had killed his right hand man, Jashim during a factional clash within the Awami League. Also, Jashim’s sons would also kill him for revenge. For the reasons set out below, it is not necessary to set out the facts of this case.

The Director’s Decisions

4.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”).

5.By Notice of Decision dated 28 July 2016 and Notice of Further Decision dated 10 July 2017, collectively called (“the Director’s Decisions”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

6.The applicant appealed to the Board against the Director’s Decisions and he attended a hearing before the Adjudicator on 29 August 2017.

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

8.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision [38-57], came to the conclusion that he had exaggerated his facts [43]; there were discrepancies in his evidence which he was unable to explain [49]; that he had embellished his account of events [50] and that even if his fear were justified, the option of relocation was available to him [56-61].

Application for leave to apply for judicial review

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

10.Attached to Form 86 was his submissions of 22 pages of grounds, which it is not necessary to set out for consideration because he would not pursue this application.

DISCUSSION

11.By a letter dated 21 January 2018, the applicant applied to withdraw his application. His application was not acceded to lest he would revive his application at a later stage. This Court decided to list his case for hearing. By letter dated 12 August 2019, the Director informed this Court that the applicant had been removed from Hong Kong.

12.It is clear that the applicant has no intention of pursuing this application. However, even if he proceeded, I find that there is no merit in his case.

13.The Court of Appeal in Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that the immigration officer and the Adjudicator are the facts finders. Since the Board did not accept his evidence on the facts of his case, he simply has no factual basis in support of his claim. Paragraphs 38-56 of the Board’s Decision have clearly set out the basis of the assessment and the reasons for the Board’s findings. There is nothing amiss in the assessment of the facts by the Board.

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

CONCLUSION

15.Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success and now he has withdrawn his application, I refuse to grant him leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 15^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