Case Document

100%Judiciary

HCAL 2846/2018

[2021] HKCFI 3276

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2846 of 2018

BETWEEN

	Md Mahabor alias Mahabub	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 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 20 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 by boat on 4 September 2009. He was arrested by police on 6 September 2009. He lodged non-refoulement claim by way of a written representation dated 13 August 2013.

5.He claimed that if refouled, he would be harmed or killed by the family and people of Rashid, his cousin. There was a dispute between Rashid and himself over a piece of land. Following on, they had had a fight on the disputed land. Rashid’s side had 20-25 people whereas his side had 10-15 people. In the fight, Rashid was hit by someone on his side on the head. He died a few days later. Rashid’s family reported to police alleging that he had murdered Rashid. Police filed a charge against him for murder. He had to move to live in other places in order to avoid Rashid’s family and police. He finally took his friend’s advice and fled to China where he had stayed for 3 years before coming to Hong Kong. Details of his story are set out in paragraphs 12-41 of the Director’s Decision described below.

The Director’s Decision

6.He had raised a claim on torture under Part VII C of the Ordinance and failed. The Director considered his application in relation to the following risks:

a. 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”);

b. 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

c. 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 15 February 2018 (“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 Rashid’s family or people or by the police if he returned to Bangladesh was assessed to be low [58]; that it would be reasonable for the police in Bangladesh to make investigation into the alleged murder of Rashid [68]; that state protection would be available and justice would be meted to him if he returned to Bangladesh [81 & 82] and that internal relocation was an option open to him [83].

The Board’s Decision

8.The applicant appealed against the Director’s Decision. He appeared before the Board on 12 September 2018.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision. The Board had protracted cross-examination of the applicant’s evidence and taking into account of inconsistencies and confusion of the evidence [42-70], came to the conclusion that he had fabricated his story about the land transactions, land dispute, fight between him and Rashid or police investigation in or charge of murder of Rashid. In a nutshell, the Board rejected his factual evidence in support of his claim. As a result, the Board did not accept there was substantial ground for believing that he had real risk of harm or being killed if he returned to Bangladesh [77-88].

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 11 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 disagreed with the Board’s Decision. He particularly raised BOR 2 risk, saying that it would be unreasonable to deprive him of the right to life arbitrarily.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC, 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

14.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.”

15.Since the Board has rejected the applicant’s evidence, he has no factual basis in support of his claim. His grounds in support of his application are his comments without any evidence in support of them.

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 realistic prospect of success in his intended judicial review.

CONCLUSION

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

Dated the 5 day of November 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 5 November 2021 Md Mahabor alias Mahabub 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 5 November 2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 10483/18/2/367/B1172 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 28/18 (Formerly RBCZ 2002452/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)