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

HCAL 1490/2018

[2022] HKCFI 485

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1490 of 2018

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 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”), 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 was arrested by the Hong Kong police on 29 May 2008.  His immigration history revealed that he had been attempting to enter Hong Kong on previous occasions with different identities.  On 8 June 2008, he lodged a torture claim.  By a decision dated 17 November 2011, the Director rejected his torture claim.  On 17 December 2013, he lodged a non-refoulement claim.  The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by his father in law Mr. Miah.  He also feared that he would be arrested by the police as Mr. Miah filed a false case of murder against him.

5.According to the applicant, Mr. Miah was the union chairman of Bangladesh Nationalist Party (“BNP”) in his home village.  The applicant started the relationship with Mr. Miah’s daughter in around 2002, and eventually married her in 2005. But they hid from others as Mr. Miah would not approve their relationship.  The applicant claimed that he was attacked by his father in law and some of Miah’s followers.  He was hospitalized and later reported to the police.  While in police station, he was told that Mr. Miah framed a false case against him.  Thereafter, he made several attempts as described above to enter Hong Kong for protection.  Details of his story are set out in paragraph 8 of a Notice of Decision dated 2 September 2016 by the Director (“the Director’s First Decision”) and paragraph 20 of the Board’s Decision.

The Director’s Decision

6.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 the Director’s First Decision, the Director refused his claim on the grounds of Persecution risk and BOR3 risk for the reason that his claim was not substantiated. The Director found that the applicant’s claim was not credible on the basis that he had been providing inconsistent accounts to the material aspects of his claim [25]-[26]; the level of risk of him being harmed or killed upon refoulement was assessed to be low [27]-[28]; that state protection was available to him [30] and that internal relocation was an option open to him [31].  In a Notice of Further Decision dated 6 September 2017, 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 deprived of right to life under BOR2 upon return to his home country.  The Director’s First Decision and the Director’s Second Decision will be referred to as “the Director’s Decisions”.  

The Board’s Decision

8.The applicant appealed the Director’s Decisions to the Board.  On 2 May 2018, the Board conducted an oral hearing, during which the applicant confirmed that the basis of his non-refoulement claim was the fear from his father in law [24].  Apart from that, the applicant indicated that he did not want to give evidence [22].   

9.Having considered the applicant’s claim, the Board dismissed his appeal.  The Board identified several aspects of the applicant’s evidence that were not credible or reliable [27].  It proceeded to assess the individual grounds.  The Board reviewed the country of origin information and concluded that state protection was available to the applicant [31].  The Board also found that Mr. Miah had no intention to seriously harm or kill him [39]-[40].  Further and in any event, the problem with Mr. Miah was localized and internal relocation was available to the applicant [45]-[47]. Thus, the Board rejected his claim on the applicable grounds.  

Application for leave to apply for judicial review

10.The applicant filed Form 86 dated 27 July 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said the Director’s [Board’s] Decision was unreasonable as he failed to consider all the matters raised in his claim or give adequate reason.

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.The applicant had elected not to give evidence before the Board after hearing the adjudicator’s explanation of the hearing. The Board then assessed his case and disbelieved his evidence for the reasons of exaggeration, implausibility and his past conduct before the immigration officer. The adjudicator has not stated in the Board’s Decision that he had taken into account the fact the applicant refused to give evidence. However, I find that the Board is entitled to take into account the factor of him not giving evidence at the hearing as damaging the applicant’s credibility by virtue of section 37ZD(3) of the Ordinance[1].

16.The applicant has submitted no valid ground to assist his application.  The Board clearly has given its reasons for rejecting his evidence. It assessed the individual grounds. His grounds are his comments and have no merits.

17.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.

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

CONCLUSION

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

Dated the 17^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

[1] (1) In considering a torture claim, an immigration officer or the Appeal Board may take into account, as damaging the claimant’s credibility, the following behaviour of the claimant—

(2) … …

(3) This section does not prevent an immigration officer or the Appeal Board from taking into account any other behaviour of the claimant as damaging the claimant’s credibility.