Case Document

100%Judiciary

HCAL 1117/2019

[2022] HKCFI 1904

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1117 of 2019

BETWEEN
	Shamim	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 the 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 15 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for him. However, he was absent without any prior notice. The Court decided to 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 and was arrested on 14 February 2016. He made his claim by way of a written representation dated 3 March 2016. He claimed that he would be harmed or killed by members of Awami League (“AL”), his enemy, if he returned to Bangladesh.

5.According to the applicant, he was a supporter of Bangladesh Nationalist Party (“BNP”). In 2012, he and his friends were attacked by 10 odd people of the AL with hockey sticks. He was badly injured on his head and body. He had received stitches on his head. He had made a report to Tongibari police station. But the police did not accept his case. Nor did they take any action as they were corrupt. During the period of 4 years, he had stayed in 2 different locations. He came to Hong Kong illegally in February 2016. Details of his story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC 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 11 July 2018 (“the Director’s Decision”), the Director refused the applicant’s claim and found that there was no substantial ground for believing that there would be any real and substantial risk of him being harmed or killed by his enemy upon his refoulement. First, the low intensity and frequency of past ill-treatment from his enemy indicate that future risk as claimed is not likely to materialize [12-14]. Second, the availability of state protection lowers or negates the level of risk [15-18]. Third, internal relocation alternatives are available and reasonable, which further lower or negate the perceived risks [19-27].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 14 January 2019, the Board conducted an oral hearing for his appeal.

9.The Board enquired the material aspects of the applicant’s claim. The main fear arose out of 2012 incident of attack by the applicant’s enemies. The Board rejected this issue would cause him to fear of risk of being harmed or killed if he returned to Bangladesh. It rejected the applicant’s claim on all grounds. As this is an appeal against the Director’s Decision, though the Board did not expressly affirm the Director’s Decision, I have to assume that the Board agreed with the Director’s Decision and the reasons therein stated.

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

10.The applicant has filed Form 86 dated 26 April 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant said his wife had told him that his enemies were still looking for him and his life would be in danger if he returned to his country. The AL is still in power. His enemies did all kinds of bad things. They raped women and killed workers. Police would not protect them. He believed the Board had not considered his situation well enough. Otherwise it would not have rejected his appeal.

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, §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.Those grounds above are his bare allegations without any evidence to prove them and they are not valid reasons to challenge the Board’s Decision.

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

CONCLUSION

18.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 23^rd day of June 2022

(Chung Lai Fan, Christine)
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 23 June 2022 Shamim 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 23 June 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 12546/18/7/296/B1405 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2007/16 (Formerly RBCZ 11058/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)