Abdul Alim v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 767/2021

[2021] HKCFI 2948

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 767 of 2021

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 Decisions respectively dated 5 January 2017 (the “Board’s 1st Decision”) and 10 January 2020 (the “Board’s 2nd Decision”) of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).  His application filed on 26 May 2021 is late.  I shall deal with this issue below.

2.He is no longer detained in the Castle Bay Immigration Centre.

3.The applicant has asked for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”).  A hearing was fixed for him.  However, he was absent without prior notice to the Court.  I considered that he had forfeited his right of attendance in court.  I proceed to consider his application on the papers.

The applicant

4.The applicant is a Bangladeshi national.  He came to Hong Kong on 6 October 2007 as a visitor.  He overstayed.  On 27 November 2007, he was arrested by police.  He raised non-refoulement on 12 December 2007.

5.He claimed that if refouled, he would be harmed or killed by the people from the Awami League (“AL”) because they would persecute the opposition to secure their political position in Bangladesh.  He was a member of the Bangladesh Nationalist Party (“BNP”).  He was also afraid the he would be arrested by police because he was accused by some members of the AL of murder.

6.He was a well-known member of the Bangladesh Nationalist Party (“BNP”).  The rival party Awami League became the ruling party in 1996.  He participated in the demonstrations.  In three demonstrations, he was arrested and tortured by police to force him to admit the charges.  He was bailed out after paying bribe to the police.  In early 2007, he was accused of committing murder.  He was on the warrant of the police. He left Bangladesh for Hong Kong.  Details of his story are set out in paragraph 7 of the Director’s Decision described below.

The Director’s Decisions

7.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”).

8.By Notice of Decision dated 31 December 2014 (“the Director’s Decision”) and Notice of Further Decision dated 11 April 2017 (“the Director’s Further 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 if he returned to Bangladesh was assessed to be low [15]; that state protection would be available to him [27] and that internal relocation was an option open to him [38].  In paragraph 6 of the Director’s Further Decision, the Director found that he failed to establish that there was personal and real risk that he was subject to BOR 2 risk.

The Board’s Decisions

9.The applicant appealed against the Director’s Decisions.  He had appeared before the adjudicator of the Board in a hearing.

10.By the Board’s 1^st and 2^nd Decisions, the Board rejected his appeal and affirmed the Director’s Decisions.  The Board further found that his evidence was not worthy of credit.  He adopted an evasive attitude when giving evidence in the hearing.  The discrepancies between the account of events given by him at the hearing and the evidence given to the immigration officer were so numerous and fundamental that they completely undermined his credibility.  See paragraph 27 of the Board’s 1^st Decision.  The Board also dismissed his claim on BOR 2 risk.  See paragraph 26 of the Board’s 2^nd Decision.

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 26 May 2021 to apply for leave to apply for judicial review of the Board’s Decisions.

12.In his affirmation in support of his application, he said that he did not have the documents to prove his case.  He could only obtain the documents after his release from custody.

DISCUSSION

13.As mentioned in paragraph 1, this application is late.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.  I shall first consider the merits of the applicant’s case.

14.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

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.His ground in support of this application does not assist his application.  The Board rejected his evidence not simply because he had no documents to prove his case.  As mentioned in paragraph 10 above, the Board had tested his evidence through cross-examination.  See paragraphs 28-47 of the Board’s 1^st Decision.  Since the Board has rejected his evidence, he has no factual basis in support of his claim.

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

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

CONCLUSION

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

Dated the 18^th day of October 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