Mir Shajjat v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2703/2018

[2021] HKCFI 3446

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2703 of 2018

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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 14 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.

The applicant

3.The applicant is a citizen of Bangladesh.  He sneaked into Hong Kong illegally on 24 January 2016 and was arrested by police on 2 February 2016.  He was referred to the Immigration Department where he raised non-refoulement claim on 6 February 2016.

4.He claimed that if refouled, he would be endangered by Chand and the People of Awami League (“AL”) because he was a member of the Bangladesh Nationalist Party (“BNP”).  He claimed that he would also be harmed or killed by his creditors who belonged to AL due to his default in the loan repayment.

5.He was an active member of BNP.  The AL people told him to convert to AL.  He refused.  They threatened to do harm to him if he refused.  He had borrowed money for his fish farm business.  He suspected that the AL people had poisoned his fish.  As a result, his fish died and he was unable to pay interest to the creditor.  The creditors brought people to demand payment of the debt.  He was assaulted by Mohammad Miah, Aalal and Chunnu Miah.  He finally left Bangladesh.  Details of his story are set out in paragraph 6 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 11 October 2017 (the “Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that his claim was not substantiated as the risk of him being harmed or killed if he returned to Bangladesh was assessed to be low [13]; that state protection was available to him [19] and internal relocation was an option open to him [24]. 

The Board’s Decision

8.The applicant appealed against the Director’s Decision.  He appeared before the adjudicator of the Board on 5 September 2018.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons that it did not accept the facts in support of the applicant’s claim, i.e.  that he was an active member of BNP and was the target of the AL people; that he had borrowed money for his fish farm business; that the AL people had poisoned his fish and that he would have a real chance of harm in Bangladesh in the reasonably foreseeable future if he returned to Bangladesh [50-51].

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 29 November 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said what he submitted to the Director and the Board were true.

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. (1) … …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.His grounds in support of this application do not assist his application.  The Board was entitled to cross-examine his evidence and come to its conclusion as it did in this case.  The Board had rejected his evidence on the facts.  He has no factual basis in support of his claim.

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 prospect 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 22^nd day of November 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