Case Document

100%Judiciary

HCAL 2747/2018

[2021] HKCFI 3775

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2747 of 2018

BETWEEN
	Alim Md Abdul	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 Director’s Decision dated 14 December 2017 (the “Director’s Decision”) and the Decision dated 28 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.Since the applicant had appealed the Director’s Decision to the Board, he is not entitled to apply for judicial review of the Director’s Decision and his application in respect of the Director’s Decision has to be dismissed. Re Moshsin Ali [2018] HKCA 549.

3.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.

4.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

5.The applicant is a citizen of Bangladesh. He was arrested by police on 14 February 2016. He admitted he had entered Hong Kong illegally by boat on 14 February 2016. He lodged non-refoulement claim on 5 March 2016.

6.He claimed that if refouled, he would be harmed or killed by the people of the Awami League (“AL”) because he belonged to the Jamaat-e-Islami Party (“JIL”) or the Bangladesh Nationalist Party (“BNP”) and he refused to pay extortion money to them.

7.He was running his business of trading gold and jewellery products. The AL people came to his shop and demanded money. They made verbal threats. He had paid some money to them, but was unable to pay further whereupon they vandalized his shop, went to his home to make threats and assaulted him. He had suffered injuries and was admitted to hospital. But he did not report the matters to police because he considered that it would be useless to do so because the AL was the ruling party. Because of the threats and assaults by the AL people, he had to move to reside in his relatives’ places in Dhaka and Jhenaidaah. Finally, he decided to leave Bangladesh for China. From Shenzhen he sneaked into Hong Kong. Details of his story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

8.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”).

9.By Notice of Decision dated 14 December 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 him being harmed or killed if he returned to Bangladesh was assessed to be low [11]; that state protection was available to him [16] and that internal relocation was an option open to him [21].

The Board’s Decision

10.The applicant appealed against the Director’s Decision. He was requested to attend a hearing before the Board. However, he wrote a letter to the Board, stating that he did not want to attend the hearing as he was suffering from depression, resulting from his detention. The Board explained to him that his attendance would be required to clarify his evidence and if he insisted not to attend, the Board would assess his evidence without his explanation that he might have. This would be to his disadvantage. He was also required to submit medical evidence to prove his alleged depression. The applicant insisted that he would not attend the hearing, saying that he understood the consequences. The Board therefore proceeded to consider his appeal on the papers accordingly.

11.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons that there were inconsistencies and unexplained incidents in his evidence given to the Director, which could not be resolved without his attendance before the Board [49-55]. As a result, the Board rejected his evidence that he was a member of JIL or BNP; that he was extorted for money by the AL people; that he was threatened or assaulted; that he was admitted to hospital [56-60]. In a nutshell, the Board rejected all of his factual evidence in support of his claim.

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 3 December 2018 for leave to apply for judicial review of the Board’s Decision.

13.The applicant has attached his grounds to Form 86. He considers that the decisions of the Director and the Board are wrong. He insists upon his right to life under Article 28 of the Basic Law and Article 2 of the Bill of Rights. He cites a case where an illegal immigrant was repatriated but was killed in his country. The administration of his own country is incompetent and corruptive. Further the Director has failed to attain high standard of fairness required by the Wednesbury test.

DISCUSSION

14.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).

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

16.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.”

17.His grounds in support of this application do not assist his application. His claim in this case depends on the facts in support of it. Having considered the evidence, the Board had rejected his evidence. The Board is entitled to do so. The Board had already advised him that if he did not attend the hearing, the Board might proceed and the findings might be to his disadvantage. He said he understood the situation and he insisted on not attending the hearing. The tribunal was entitled to draw adverse finding of his evidence against him. Li Defan & Another v HKSAR (2002) 5 HKCFAR 320 at §27 considered.

18.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.

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

CONCLUSION

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

Dated the 16^th day of December 2021

	(K.H. LI)
	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 16/12/2021 Alim Md Abdul 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 16/12/2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9689/17/12/356/B1106 Director of Immigration Putative Interested Party’s ref. no.: ImmD RLS1/12/3973/2017 Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)