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

HCAL 1787/2019

[2024] HKCFI 2048

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1787 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 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 14 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision refusing his application for non-refoulement claim on BOR 2 risk (“the Board’s Decision”).

2.The Notice of Hearing was sent to his last known address. But he did not attend the hearing on 29 July 2024.

3.The applicant had made another application of HCAL 493 of 2017 for judicial review of the decisions of the Board dismissing his claim on Torture risk, BOR 3 risk and Persecution risk, the other applicable risks[1].

4.In the action of HCAL 493 of 2017, the court conducted a hearing on 15 January 2018. The applicant appeared before Deputy High Court Judge Woodcock and asked for an adjournment because he was not feeling well. However, he did not have any medical evidence to prove his case and the court declined his request.

5.The court summarized his case and asked the applicant if he had anything to add or expand. The applicant complained that the interpreter [at the Board’s hearing] did not do her job very well and had nothing to add.

6.By Form CALL-1 dated 7 June 2018, Deputy Judge Woodcock delivered her written decisions and made the following findings:

“13. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test. It was wan Wednesbury unreasonable.

14. In my my judgment, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, pars 14-17. I refuse leave to apply for judicial review.”

7.The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, 7 January 2022, held:

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

8.Since the applicant relies upon the facts in the case of HCAL 493 of 2017 dealing with his claim of Torture risk, BOR 3 risk and Persecution risk, which the court had considered and dismissed his application for judicial review of the Board’s decisions, there is no substance in support of his claim on BOR 2 risk. As such, there is no reasonable prospect of success in his application for judicial review of the Board’s Decision and his application should therefore be dismissed.

9.There is no merit in the applicant’s application.

10.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 29^th day of August 2024

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