Palash Gazi v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2855/2018

[2020] HKCFI 1858

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2855 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 7 December 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 to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.The applicant is a Bangladeshi national. He came to Hong Kong as a visitor and he overstayed in April 2014. He was arrested by police in August 2014 and referred to the Immigration Department. He lodged his non-refoulement claim by written representation dated 16 August 2014.

5.He claimed that if refouled, he would be harmed or killed by a group of people belonging to Awami League (“AL”) because he did not pay them the amount of extortion money they demanded. He was attacked by those people with weapons and he had sustained injuries. His version of the story is set out in paragraph 15 of the Board’s Decision.

The Director’s Decision

6.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”).

7.By Notice of Decision dated 30 October 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there was no substantial ground to believe his evidence [12]; that state protection would be available to him [17] and internal relocation was an option open to him [18].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. He attended the hearing before the Board.

9.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision and, for the reasons [19-47], came to the conclusions below.

a.The applicant was not an active member of the Bangladesh National Party.

b.The Board did not accept his evidence that his former businesses were targeted for payment and it did not accept that people from AL ever went to his home to look for him or to threaten him; that his evidence that he was attacked was problematic and unconvincing and that it simply rejected that he was ever attacked [49]. Finally, the Board did not accept that he faced a real chance of harm of any kind in Bangladesh for any reason claimed or in the reasonably foreseeable future [51].

Application for leave to apply for judicial review

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

11.In his affirmation in support of his application, he did not set out any grounds in support of his application.

DISCUSSION

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny in light of the grounds advanced by the applicant.

13.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.”

14.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

15.There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

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

Dated the 5^th day of August 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