Case Document

100%Judiciary

HCAL 1273/2018

[2021] HKCFI 616

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1273 OF 2018

BETWEEN

	Shaiful Ahmed Khan	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the Applicant in open court.

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 29 June 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 had a history of coming to Hong Kong, overstaying and was repatriated to his country. On 23 May 2016, he surrendered to the Immigration Department after entering Hong Kong illegally on 9 March 2016. He lodged his non-refoulement claim with the Immigration Department on 27 July 2016.

5.He claimed that if refouled, he would be harmed or killed by enemies in the Awami League (“AL”) because of his affiliation with the Bangladesh National Party (“BNP”). He also feared being arrested and tortured by police because he was thought responsible for the death of Minto, a local AL member during a fight on 10 April 2014, and being killed by Minto’s brother, who was the vice president of the student wing of the AL in the district. Details of the incidents are set out in paragraph 7 of the Director’s Decision described below.

The Director’s Decision

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

a. risk of torture under Part VII C 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 2 August 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there were no substantial grounds for believing that there would be any substantial risk of being warmed or killed by his enemies if he returned to his country [13]; that state protection would be available to him [24] and internal relocation was an option open to him [26].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. He attended the hearing before the Board on 15 December 2017.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons as set out below.

(1) The applicant’s evidence in relation to the facts he alleged was tested by the Board thoroughly and the Board found that he was not a witness of truth and he had fabricated claims in relation to his association with the other AL people. [41]

(2) He was evasive in giving evidence. [42]

(3) He exaggerated his alleged position in the BNP or Jubo Dal. [43]

(4) The Board found his evidence not reliable and rejected all his claims on the factual basis. [40-54]

(5) For those reasons, the Board considered that there was no real risk he would face any of the proscribed forms of harm should he return to Bangladesh. [56]

Application for leave to apply for judicial review

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

11.In his affirmations in support of his application and an attachment to Form 86, he said that he would challenge the Board’s Decision on the following grounds:

(1) he did not have legal representation for his preparation of his Form 86;

(2) as the Board dismissed his appeal on the ground of his credibility, the adjudication was a procedural unfair manoeuvre as the Board failed to meet the greater care and duty owed to a self-represented claimant;

(3) there was no indication of a reasoned and considered approach for evaluation of the matters;

(4) the Board was misdirected in its approach as according to that set down in Horvath’s case (1999) – there was not sufficient research and inquiry.

DISCUSSION

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 9 above.

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.His grounds in support of this application are only his opinions without any evidence or specific in support of them. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22]. It is clear that the Board had set out the questions put to the applicant and his answers. It came to its conclusions after considering his answers and proper analysis. The applicant has not been able to specify in what respect the Board’s decisions were illogical or unreasonable. There was no procedural irregularity in the hearing before the Board. I reject all his grounds above.

15.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.

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

CONCLUSION

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

Dated the 16^th day of March 2021

(M. O. WONG)(Ms)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 16 March 2021 Shaiful Ahmed Khan Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 16 March 2021 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 8131/17/8/169/B931 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3257/16 (S125T7) (Formerly RBCZ 12934/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)