Case Document

100%Judiciary

HCAL 1538/2018

[2022] HKCFI 225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1538 of 2018

BETWEEN

	Ripon Miah	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 July 2017 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”), the matter is dealt with 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 national of Bangladesh. He had entered Hong Kong on different occasions with two different identities from 1998 to 2007. On 9 March 2008, he was arrested by the Hong Kong police. On 10 May 2008, he lodged a torture claim. On 30 April 2009, he wrote to the Immigration Department that he intended to return to Bangladesh. Later, on 19 June 2009, he indicated his unwillingness to return and sought to maintain his torture claim. Thereafter on 26 February 2013, he again indicated his intention to return to Bangladesh. On 10 December 2013, he requested to re-open his torture claim. His torture claim proceeded as a non-refoulement claim upon the commencement of the unified screening mechanism. The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by Sattar Saheb and followers who were affiliated with Awami League (“AL”). He also feared that he would be framed with a false case upon refoulement.

5.According to the applicant, he was a youth leader of Bangladesh Nationalist Party (“BNP”). In around 2007, his family heard that he was involved in the murder of Sattar’s brother Ali which happened in 1995 or 1996. Back then, the BNP was in power and hence Sattar did not pursue this matter. However, in 2007, BNP was no longer in power. Sattar reported to the police and framed the applicant for involving in the murder. Later, he confronted Sattar who extorted money from him. Thereafter, the applicant was attacked by four or five AL members. Out of fear, he fled from his home village. He also explained his previous withdrawal of the torture claim, saying that he promised to return and solve the matter with his enemies but he was arrested by the Hong Kong police for a false case. The AL people thought he lied to them and became angry, threatening him and his family members. Thus, the applicant stayed in Hong Kong for protection. Details of his story are set out in paragraph 7 of a Notice of Decision dated 27 October 2015 by the Director (“the Director’s First Decision”) and paragraphs 46-66 of the Board’s Decision described below.

The Director’s Decisions

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 the Director’s First Decision, the Director refused his claim on the grounds of Persecution risk, Torture risk and BOR3 risk for the reason that his claim was not substantiated. The Director found that the level of risk of him being harmed or killed upon refoulement was assessed to be low [17]-[20]; that state protection was available to him [21] and that internal relocation was an option open to him [22]. In a Notice of Further Decision dated 24 October 2016, the Director also rejected his claim on BOR2 risk (“the Director’s Second Decision”) for the reason that there was no evidence to show that he would be subjected to violation of his right to life under BOR2. The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

The Board’s Decision

8.The applicant appealed the Director’s Decisions to the Board. An oral hearing was scheduled on 22 November 2016 for the applicant’s appeal.

9.Having considered all the evidence, the Board dismissed the applicant’s appeal. While the Board observed that there might be corruptions within the police service, the applicant was required to show that these the risk applied to his personal situation but there was no independent evidence to this effect [67]-[70]. The Board also found that the use of two different identities without cogent explanations upon inquiries undermined the applicant’s credibility [73]-[79]. Further, other aspects of the applicant’s claim were contradictory. For example, there were unsatisfactory features in the applicant’s accounts on his arrest by the police and Sattar’s extortion of money. Also, according to the country of origin information, the Bangladeshi police had arrested the AL leader in 2007 and thus they were far from being influenced by the AL. The applicant’s explanation of not going to India where was his wife’s birthplace was not acceptable. Viewed the evidence in totality, the Board refused to accept that he came to Hong Kong for protection [80]-[91]. In any event, the Board found that internal relocation in Dhaka or Chittagong was available to the applicant [92]. Thus, the Board rejected his claim on all applicable grounds.

Application for leave to apply for judicial review

10.The applicant filed Form 86 dated 3 August 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 there was no lawyer to advise him; that the Board based upon assumption without considering the evidence; that the Board made inference without evidence.

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.He has submitted no valid ground to assist his application. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22]. It is simply not true to say that the Board made assumptions or inference without evidence in support. The Board had set out the reasons for its findings.

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 for the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.

Dated the 21^st day of January 2022

(Chasel MAN)
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 21/01/2022 Ripon Miah 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 21/01/2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 2497/15/11/9/B329 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1044/15 (Formerly RBCZ 4/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)