Saha Bappi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2140/2018

[2022] HKCFI 394

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2140 of 2018

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 dismissed.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decisions dated 24 September 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 national of Bangladesh.  He entered Hong Kong illegally on 17 July 2015 and surrendered to the Immigration Department on 28 July 2015.  On 10 March 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his Muslim neighbour Abdul Motin (“Motin”) because of a land dispute.  He also feared that, as a Hindu, he would be in danger in Bangladesh.   

5.According to the applicant, his family practiced Hinduism in an area where was predominately occupied by Muslims.  Since around 2014 or 2015, the applicant’s family had a land dispute with Motin who was a member of Awami League (“AL”) – the then ruling party in Bangladesh.  Disagreed with the government official’s measurements of the land, Motin’s family and associate assaulted him and his father.  Both of them suffered injuries.  Since then, Motin had been harassing them and threatening them via phones.  Later in around April or May 2015, the applicant and his parents were again beaten up by 15 to 20 people.  Among the attackers, five of them were Motin’s brothers.  Out of fear, he eventually fled to Hong Kong for protection.  Details of his story are set out in paragraph 10 of the Director’s Decision and paragraphs 3 to 5 of the Board’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 16 January 2017, 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 [16]-[18]; that state protection would be available to him [19]-[23] and that internal relocation was an option open to him [24]-[28].

The Board’s Decision

8.The applicant appealed against the Director’s Decision to the Board and attended a hearing on 23 April 2018.

9.The Board considered that the applicant’s claim of being a minority who was a subject of discrimination and persecution in his home area was internally consistent and corroborated by the country of origin information (“COI”) [15]-[25].  It then proceeded to consider whether state protection was available to the applicant.  The Board found that, while it was a private dispute with no state involvement, based on the COI, the Director erred in concluding that the applicant could relocate to other areas of Bangladesh given the level of police corruption and the discrimination faced by Hindu.  It appeared that the applicant could not avail himself of the protection of the state in Bangladesh [26]-[33].  Thus, the Board found that the problems faced by the applicant, i.e., the land dispute, were motivated and aggravated by his religion and the political power of Motin [38].  For these reasons, the Board allowed the applicant’s appeal on the ground of Persecution risk [39]. Nevertheless, the Board found that there was no evidence that the applicant’s right to life would be at risk or that he would face real risk of torture or any inhumane treatment.  Further, there was no suggestion that Motin was a public official or acting with official acquiescence.  The Board dismissed his claim on the remaining grounds [34]-[51]. As a conclusion, the Board allowed the applicant’s appeal against the Director’s Decision. See paragraph 51 of the Board’s Decision. 

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 8 October 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said “… …I made this affirmation in support of my application for leave to apply for judicial review of the decision made by the Torture Claims Appeals Board…dismissing the appeal by ruling that the applicant fails to establish a case for non-refoulement whether under the principles of torture or BOR2 or BOR3 or Persecution …”

DISCUSSION

12.This is a peculiar application. As mentioned above, the Board had allowed his appeal against the Director’s Decision on the reason the he succeeded on the ground of Persecution risk.  As such the matter should be remitted to the Director for further consideration or further action.  His application will serve no useful purpose and must be dismissed on this basis as the Court of Appeal in AW v Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015:

“It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (De Smith’s Judicial Review (7^th ed) at §§18-054 to 18-056; Judicial Review by Supperstone, Goudie and Walker (5^th ed) at §18.18.1) ….” [67]

CONCLUSION

13.Accordingly, I dismiss his application.

14.This Form CALL-1 shall be served on the Board and the Director respectively.

Dated the 7^th day of February 2022

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