Case Document

100%Judiciary

HCAL 1097/2019

[2022] HKCFI 1436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1097 of 2019

BETWEEN
	Md Russel Miah	Applicant
	and
	Torture Claims Appeal Board/	Putative Respondent
	Non-refoulement Claims Petition Office
	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.The applicant applies for leave to apply for judicial review of the Decision dated 25 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will 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 and was permitted to stay as a visitor until 12 March 2006. He overstayed and was arrested by police on 8 June 2009. He lodged a torture claim on 10 June 2009. His application was rejected on 21 December 2012. By two letters dated 17 and 20 March 2013, he lodged non-refoulement claim.

5.His claim was made on the basis that, if refouled, he would be harmed or killed by the creditor Abdul Karim (“Abdul”) and his relatives because he refused to marry Abdul’s daughter as an alternative to his father’s default in loan repayment. Abdul was well connected with the Awami League, the ruling party at that time and he was also connected with the police.

6.His father had borrowed 1.5 million Taka from Abdul for his election expenses. He was unable to repay. Abdul did not press him for repayment but only requested him to arrange a marriage between the applicant and his daughter, Nasima. He was unwilling to marry Nasima. In mid-2005, he told Abdul about his decision and Abdul was angry. He pressed his father for repayment. Together with his relatives, Abdul threatened to kill him if he refused to marry his daughter. He therefore left Bangladesh for Dhaka, from which he also visited India and Nepal. He finally came to Hong Kong. Details of the applicant’s claim are set out at paragraph 9 of the Director’s Decision as described below.

The Director’s Decision

7.The Director considered the applicant’s claim 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”).

8.By a Notice of Decision dated 13 August 2018 (“the Director’s Decision”), the Director refused the applicant’s claim. The Director found that the level of risk from Abdul and his relatives upon his refoulement was assessed to be low because: (i) there was absence of ill-treatment from Abdul, which is indicative of unlikelihood of future harm to him by Abdul [21-23]; (ii) state protection would be available to him [24 & 25], and (iii) internal relocation was also an option [28].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 15 November 2018, the Board conducted an oral hearing for his appeal.

10.The Board confirmed the Director’s Decision. It further found that there was never any conduct on the part of Abdul or his relatives carrying out the threats as alleged [40]. On this basis, all his claims were rejected. It also found that relocation was an option open to him [49-53]. It dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 24 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant enclosed the hearing bundle, without specifying any specific ground.

DISCUSSION

13.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

15.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.”

16.There is no valid reason to challenge the Board’s Decision.

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.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 19^th day of May 2022

(Mike MAK)
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 19/5/2022 Md Russel 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 19/5/2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 13150/18/8/420/B1496 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2216/18 (Formerly RBCZ/2000202/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)