Khan Liton v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2789/2018

[2021] HKCFI 2205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2789 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;  or
	consideration of documents and Applicant being absent 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 November 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 citizen of Bangladesh.  He came to Hong Kong illegally and was arrested by police on 30 January 2016.  He lodged non-refoulement claim with the Immigration Department by way of written representation dated 3 February 2016.

5.He claimed that if refouled, he would be harmed or killed by members of the Awami League (“AL”) because he was an active member of the Bangladesh Nationalist Party (“BNP”).  Members of the AL invited him to quit BNP and join AL.  He refused.  There were two occasions he was beaten up by the AL members, one in 2007, the other in 2008.  On the first occasion they slapped his face.  On the second occasion, there were about 10 people using hockey sticks to hit his legs.  His father arranged his leaving of Bangladesh for China.  Details of his story 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 9 December 2016 (“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 him being harmed or killed by the AL members if he returned 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 6 September 2018.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons that his evidence was inconsistent and implausible to such extent that it did not accept his story that he was attacked by the AL members on two occasions and that the level of risk of being harmed or killed if he returned to Bangladesh was low.  The Board accepted that state protection would not be available to him, given the situations of corruptions and police investigation of criminal offences were insufficient in Bangladesh.  However, internal relocation would be available to him and it would not be too harsh for him to live somewhere else such as Dhaka. See paragraphs 47-68.

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 6 December 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 wanted to review the Board’s Decision because it was unfair and unreasonable.

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

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 prospect 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 3^rd day of August 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

Form CALL-1