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

HCAL 771/2019

[2022] HKCFI 3795

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 771 of 2019

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 present 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, by filing Form 86 on 19 March 2019, applies for leave to apply for judicial review of the Decision dated 28 February 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”), he appeared before the Court on 2 November 2022.

3.This application is unusual as the Board had allowed his appeal on the grounds of BOR 2 risk and BOR 3 risk and it found that the applicant had established that he is entitled to non-refoulement protection in Hong Kong. I shall briefly set out the events leading to this result.

The applicant

4.The applicant is a national of Bangladesh.  He entered Hong Kong as a visitor on 8 July 2006 and was allowed to stay in Hong Kong for 14 days. He did not depart and overstayed. On 22 December 2006, he was arrested by police for having overstayed. On 24 June 2009, he raised torture claim under Part VIIC of the Immigration Ordinance (“the Ordinance”) and was rejected. On 30 January 2014, he lodged a non-refoulement claim.

5.The gist of his claim is that if refouled, he will be harmed or killed by the gangsters he encountered and their families because he had witnessed they killed a man. This happened in 2006. He saw two men chop another man to death. They recognized him and chased him. He managed to hide himself in a nearby house. The two men fled as other neighbours came out. It was because the assailants recognized the applicant, he had to move around, living in different places with various family members and friends. The applicant’s cousin told him that two ladies from the gangsters’ families had gone to his parents and warned them that he must not testify in court as to what he saw, otherwise, he would suffer the same fate as the man who had been chopped to death.

6.Meanwhile, the victim’s family had also learned that the applicant witnessed the murder and urged his in-laws to tell him to stand as witness. His father-in-law reported the case to police in another district. The police said that they did not have jurisdiction as the case happened in another district. In view of all the pressure that he felt under from the threats which had been made against him and also constantly moving around, hiding in different places, the applicant decided to leave and he finally came to Hong Kong.

The Director’s Decision

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

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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 way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm from the gangsters and their family members upon his return was assessed to be low [14]. In particular, there was no ill-treatment from the murderers and their family members in the past 15]. The behaviours of the gangsters and their family members showed no real intention to severely and continuously harm him [16]. There is no evidence to show that the gangsters or their families are so powerful and well-connected as to influence the Bangladeshi government [17]. His claimed fear seems not real as he did not seek protection immediately after he had arrived in Hong Kong. He was arrested and he made his torture claim 5 months after his arrival [18]. He should have state protection in Bangladesh as there is no evidence to show that the state was involved [19] – [22]. Finally, internal relocation is a viable option open to him [23].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board.  On 23 October 2018, the Board conducted an oral hearing for his appeal.

10.Having assessed the evidence, the Board made the following observations:

(1)  The Board noticed that amongst the lengthy allegations in the applicant’s notice of appeal and grounds of appeal/petition, various new allegations were made, which are inconsistent with what the applicant has stated both in his original Torture Claim Form and his SCF, and his two interviews. The Board has set out 4 examples. [21]

(2)  The applicant explained that it was his friend who had written the notice of appeal/petition for him. He did not understand what had been written himself. [22]

(3)  The Board accepted that the applicant had given a truthful account of the matters and the adjudicator was persuaded on all the evidence that the hearsay evidence of the threats which had been repeatedly uttered against him to members of his family whilst he was hiding, was admissible and probative. [32]

(4)  Notwithstanding that Witness Protection Legislation has been enacted in Bangladesh and also more recently in Punjab, it has not prevented several instances of witnesses being assassinated before they have been able to give evidence in court. It seems clear that in practice no effective protection is provided for witnesses in Bangladesh, either before or after they give evidence in court. [37]

11.It was on those reasons the Board overturned the Director’s Decision on BOR 2 risk and BOR 3 risk. At paragraph 39 and paragraph 40 of the Board’s Decision, the Board states:

“39. For the reasons given above, I am satisfied that the Appellant has shown that there are substantial reasons to believe that if he were henceforth refouled to Bangladesh, he would be at real and personal risk of being killed or otherwise seriously harmed, in breach of BOR 2 and /or BOR 3.

40. It follows that the Appellant has established that he is entitled to non-refoulement protection in Hong Kong. His appeal succeeds: the decision of the Immigration Officer on behalf of the Director of Immigration dated 24 January 2014 is confirmed and the decision dated 21 June 2019 insofar as if relates to BOR 2 and BOR 3 is reversed.”

12.In a letter dated 28 February 2019 sent by the Board to the applicant, the Board informed the applicant that his non-refoulement claim on the grounds of BOR 2 and BOR 3 was substantiated and the respective decision contained in the Notice of Decision of 21 June 2018 was reversed. In the circumstances, he will not be returned to the country concerned for the time being. However, the letter continued to say:

“However, you are reminded that the decision not to return you to the country concerned for the time being should not be construed as granting you permission to stay in Hong Kong. You are further reminded that the removal/deportation order, if any, made against you is still in force and you may still be removed/deported to the country concerned should there be changes to present circumstances which render your claim to be no longer substantiated.”

13.It seems that the applicant takes the view that the Board did not allow him to stay in Hong Kong and he has to bring the Board’s Decision to Court for judicial review.

DISCUSSION

14.As this Court has said in the beginning, this is an unusual case where the applicant applies for leave to apply for judicial review of the Board’s Decision, which allows his appeal against the Director’s Decision.

15.As the applicant has succeeded in his appeal, it seems that his intended judicial review will serve no practical purpose. The Court of Appeal in AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015 held:

“67. 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 (7th ed) at §§18-054 to 18-056; Judicial Review by Supperstone, Goudie and Walker (5th ed) at §18.18.1).”

CONCLUSION

16.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 30^th day of December 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