Uddin Mohi v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1735/2018

[2020] HKCFI 1760

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1735 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 17 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended by replacing the Director of Immigration (the “Director”) with the Board as proposed respondent.

The applicant

4.The applicant is a Bangladeshi national. He came to Hong Kong on 27 May 2014 illegally through Shenzhen. He was arrested by police on 27 June 2014 and was referred to the Immigration Department the next day.  On 30 June 2014, he lodged his non-refoulement claim.

5.He claimed that if refouled, he would be harmed or killed by his political enemies from the Awami League (“AL”) as he was a member of Bangladesh Nationalist Party (“BNP”).

6.In 2012, he and his other members of BNP were attacked by the Awami League members with hockey sticks. He had suffered injuries to his limbs and back. He and his friend S managed to escape. He went to a hospital and received treatment. His parent told him that the AL members went to his house to look for him. He and his family then moved to live in Dhaka. After two or three months, he came across AL members on the street where they attacked him with bamboo sticks and burnt his foot. They threatened to kill him. He was admitted in hospital for 3 days. It took about a month to recover. The BNP leader advised him to leave Bangladesh. His parents agreed. He left Bangladesh for Shenzhen from where he sneaked into Hong Kong.

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 18 September 2017 (“the Director’s Decision”), the Director refused his claim on all risks for the reason that his claim was not substantiated. The Director found that the level of risk of harm from the AL people upon his return was assessed to be low [24]; that state protection would be available to him [33] and internal relocation was an option open to him [41].

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 14 June 2018. The Adjudicator of the Board raised questions with the applicant.

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

11.In its Decision, the Board considered the applicant’s evidence and for the reasons set out in paragraphs 26-35, it found that there were “multiple, material and implausibilities in his evidence, as well as his non-persuasive explanations…”. It came to find that the applicant was not a credible witness and it rejected all his evidence in support of his claim, i.e. that he was a BNP member, that he was assaulted by the AL members; that he was admitted in hospital for treatment etc. [36].

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 23 August 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he had raised the grounds that the decision was unreasonable because it failed to consider all the matters raised in his claim and it failed to give adequate reasons for its decision.

DISCUSSION

14.It is obvious that the Board had rejected all the facts in support of his application. As such, he has no factual basis for his claim.

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

“13.… …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.”

16.The grounds that he has raised in support of this application are his opinions without any evidence or specifics in support of them. The Board had given its reasons for its finding of the facts of his case.

17.There is no evidence to show that the Board erred in the finding of the facts or the application of the laws to his case.

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

CONCLUSION

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

Dated the 31^st 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