Md Abdullah Al Mamun v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1420/2018

[2021] HKCFI 933

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1420 OF 2018

BETWEEN

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 27 April 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 illegally through China in April 2013.  He was arrested by police on 1 September 2013.  He lodged his non-refoulement claim with the Immigration Department on 4 September 2013.

5.He claimed that if refouled, he would be harmed or killed by Rajib’s elder brother, Raj who is a member Awami League (the “AL”) with a close relationship with a member of Parliament and his AL people.  He was a member of the Bangladesh National Party (“the BNP”).  Also, he is being wanted by police in Bangladesh for a murder case falsely made against him.  He is under a warrant of arrest.  He would be subject to torture by police to coerce him to confess the charge of murder and he would not have a fair trial if he returned to Bangladesh because the police will side with the AL and the police officers are corrupt. All these happened because of a football match between members of the AL and the BNP, including the applicant.  There was a dispute between the two teams. He was threatened by a member of the AL that he would chop him into pieces.  After the football match, the members were involved in fights where one of the AL members was killed by one of the members of the BNP by hitting the person’s head with a hockey stick.  The applicant was falsely accused to be the murderer.  He moved to various places in order to avoid the AL members and the police.  But he considered that it was unsafe for him to stay in his own country.  He therefore came to Hong Kong through China.  Details of the incidents are set out in paragraph 8 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 23 February 2017 (“the Director’s Decision”), the Director refused his claim 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 to Bangladesh was assessed to be low [13]; that state protection was available to him [18] and internal relocation was an option open to him [22].

The Board’s Decision

8.The applicant appealed against the Director’s Decision.  He attended the hearing before the Board on 19 January 2018.

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 Board, having considered the applicant’s evidence [41-52], found that the applicant’s claim lacked credibility and there was no risk of serious harm against him and his fear was not well-found. [53]

(2)   The Board rejected all his alleged facts in support of his claim and that the state was not involved in the incidents. Furthermore, state protection would be available to him if he returned to Bangladesh. [54-67]

(3)   Although internal relocation would be irrelevant given the fact that the Board had rejected his factual evidence, however, it considered that it was possible for the applicant to relocate himself if he returned to Bangladesh. [86-88]

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 19 July 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said that he would like to have leave to judicial review the Decisions of the Director and the Board. He attached the hearing bundle to his affirmation. But he did not set out specific 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.

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.It is obvious that since the Board had rejected his evidence on the facts of his case, he has no factual basis in support of his claim.

15.His ground in support of this application does not assist his application.

16.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.

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

CONCLUSION

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

Dated the 14^th day of April 2021

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