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

HCAL 2453/2019

[2024] HKCFI 3543

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2453 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 Levy:

1.  Leave to the applicant to withdraw the Leave Application; and

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.By prescribed Form 86 filed on 26 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Torture Claims Appeal Board (“the Board”) dated 22 August 2019 (“Board’s Decision”). The Board had dismissed the applicant’s appeal against the decision dated 21 April 2017 (“Director’s Decision”) of the Director of Immigration (“Director”), who refused the applicant’s claim for non-refoulement protection.

2.Apart from the subject Decisions stated in the preceding paragraph, there is also an earlier decision of the Director dated 11 August 2015 (“Director’s Earlier Decision’) and an earlier decision of the Board dated 20 February 2017 (“Board’s Earlier Decision”). They will be further referred to when discussing the background of this case.

Background

3.The background as taken from the two respective decisions of the Director and the Board referred to above can be briefly stated as follows.

4.The applicant was a Bangladesh national. He arrived in Hong Kong from Mainland China on 29 January 2006 on a visitor visa, and was permitted to stay until 12 February 2006. Upon the expiry of his visa, the applicant had since overstayed. On 24 April 2008, he was arrested, and later released on recognizance. The applicant failed to report to the Immigration Department on the scheduled day. On 11 August 2007, the application was arrested. On 17 August 2007. He was convicted of the offence of breach of condition of stay, and was given a suspended sentence. On 27 August 2007, he lodged a torture claim[1], which had been rejected by the Director on 25 May 2012. On 31 March 2012, he was released on recognizance. While he was released on recognizance, he absconded again, and was only arrested on 21 July 2011 for having worked illegally in Hong Kong, for which transgression he was sentenced to 10 months’ imprisonment. On 7 February 2014, the applicant lodged a non-refoulement claim covering all applicable grounds other than BOR 2 risk[2] - the risk of torture, BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on his fear of being (i) harmed or killed by members of the Awami League and the Bangladesh Nationalist Party, both of which were opposition parties of the applicant’s Jatiya Party (“JP”), and (ii) arrested by police for his suspected involvement of the murder of Nobu, whose grandparents and the applicant’s grandparents were involved in a dispute over property matters.

5.In the Director’s Earlier Decision, the Director decided against the applicant’s claim on all the applicable grounds. The Director found that the level of risk and harm was low as the disputes between JP and the two other opposition political parties were private and personal disputes without any suggestion of the involvement of government officials. After having considered the country of origin information (“COI”), the Director was satisfied that state protection was available and the applicant would be able to seek justice for his problems. Hence, the applicant’s appeal to the Board against the Director’s Earlier Decision.

6.After a hearing on 21 June 2016, the applicant attended in person accompanied by an interpreter before the Board. The adjudicator for the Board explained to the applicant his rights and allowed time for the applicant to answer the questions raised. The applicant also provided to the Board a letter at the hearing, stating that he was one of the several other persons accused of being involved in the murder of Nobu. Quite apart from having found the applicant’s lack of credibility in his account of the events, the adjudicator found that the applicant’s evidence failed to establish any of the asserted harm or threat. It was also found that the applicant was not entitled to non-refoulement for fleeing from the legal process in his home country. After having considered the COI, the Board concluded that state protection was also available. In the Board’s Earlier Decision, the Board rejected the applicant’s appeal against the Director’s Earlier Decision.

7.After the Board’s Earlier Decision, the Director, on his own initiative, decided to canvass BOR 2 risk and invited the applicant to submit further documents and evidence in relation to this risk. The applicant , however, did not provide any response within the required time of 14 days. In the absence of further information, the Director concluded that the applicant had failed to establish the BOR 2 risk. The applicant appealed to the Board against the Director’s Decision 17 days after the requisite appeal period had expired.

8.The same constituted Board considered the applicant’s appeal, and concluded that the applicant provided no reasonable excuse for the delay. The Board refused to grant extension of time for the late filing of the appeal. The Board further found that the applicant’s appeal had no prospect of success as he provided no new materials since his USM screening. The appeal against the Director’s Decision was dismissed.

Legal principles applicable to judicial review

9.As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

10.The applicant’s Form 86 did not contain any grounds for seeking relief. However, apart from the Board’s Decision against which the applicant was challenging, he also specified the Director’s Decision in the Form 86. As it can be seen from the above background facts, the applicant’s claim had been substantially disposed of by the Director’s Earlier Decision and the Board’s Earlier Decision rather than by the Director’s and the Board’s Decisions, I will include these Earlier Decisions in this discussion.

11.In the applicant’s supporting affirmation of the same date, he only exhibited the Director’s Decision, the Board’s Earlier Decision as well as the Board’s Decision. He did not provide any other evidence or identify any errors in any of the Director’s or the Board’s Decisions in support of the intended challenge.

12.Having rigorously examined the Board’s Earlier Decision and the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the four grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Decisions of the Director and the Board. In the absence of any specific grounds in support of the Leave Application, I find that it was perfectly open to the Board to come to its conclusion that the applicant’s evidence was not credible and that the applicant failed to discharge his burden of proving the asserted fears and risks.

13.For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. The Leave Application is accordingly dismissed.

Withdrawal of Leave Application

14.On 20 November 2024, the applicant filed an affirmation to apply to withdraw the Leave Application, stating that he wanted to go back to his home country and that all the problems in his home country have been solved.

15.Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I should grant leave to the applicant to withdraw the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471.

Orders

16.Leave to the applicant to withdraw the Leave Application.

17.The Leave Application be dismissed.

Dated the 11^th day of December 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