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HCAL 1937/2019
[2024] HKCFI 2750
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1937 of 2019
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BETWEEN
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Ullah Md Habib |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 10 July 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 20 May 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 27 January 2017 (the “Notice”) refusing his application for non-refoulement protection.
Background
2. The Applicant was a Bangladeshi national. He entered Hong Kong on 5 June 2005 on a visitor visa which allowed him to remain until 6 June 2005. He overstayed. On 21 January 2007, he was arrested by the police and referred to the Immigration Department. On 11 April 2007 he made a torture claim (the “Torture Claim”) under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. His application was rejected by the Director on 16 May 2013. His appeal against the decision in that Notice was dismissed by the Board on 19 August 2014.
3. On 28 August 2014, he made a non-refoulement claim under the Unified Screening Mechanism (the “USM”). In due course, his non-refoulement claim was assessed on all three remaining applicable grounds under the USM, namely: BOR 3 Risk[1]; Persecution Risk[2]; and BOR 2 Risk[3]. His application was rejected by the Director’s Notice. His appeal was dismissed by the Board’s Decision. He then applied for leave to apply for judicial review of that Decision. However, he passed away before his leave application came to be processed.
The Applicant’s case
4. The Applicant became a member of the Awami League political party (“AL”) in 2002. His cousins were members of a rival political party, the Bangladesh Nationalist Party (“BNP”). In gist, he claimed, if he returned to Bangladesh, he would be harmed or killed by members of the BNP because he refused to quit the AL to join the BNP.
5. In 1990, his cousins invited the Applicant to quit the AL to join the BNP, but he refused. Thereafter, his cousins threatened him and slapped him whenever they saw him. In January 1991, his cousins and other BNP members raided an office of the AL in his area. The Applicant was not there at the time, but his younger brother was. They beat up his younger brother in an attempt to extract information as to the Applicant’s whereabouts. His brother suffered a head injury and died at scene. The Applicant’s father made a report against two of the BNP members (“the two BNP members”). As a result one of them was sentenced to life imprisonment and the other was sentenced to six years’ imprisonment. However, they were acquitted on appeal.
6. In 2002, the Applicant ran into his cousins. They had an argument which ended in a fight. The Applicant was hit by a hockey stick and fainted. He also suffered a fractured ankle.
7. In the same year, he was also confronted by the two BNP members on three occasions. On the first occasion, they tried to attack the Applicant, but he escaped. On the second occasion, they fired at him and he managed to escape without injury. On the third occasion, they took away some goods from his shop. The Applicant reported the shooting incident in the second occasion, but not the other two occasions, because he thought the police would not help him. Then, out of fear, he fled to Hong Kong.
8. He did not believe the Bangladeshi authorities and police would help him because they were corrupt and that one of his cousins was a political leader. He did not believe internal relocation would be viable because the BNP could locate him throughout the country through their powerful network.
The finding of the Board
9. The Board found his knowledge of the AL, its aims and objectives was inconsistent with his claimed extensive involvement in the AL. He also claimed a number of other significant attacks on him between 2003 and 2005 which prompted his departure from Bangladesh. But these attacks had not been mentioned in his Torture Claim.
10. The Board reached the conclusion that the Applicant was not a truthful witness and that he fabricated the totality of his claim. It rejected his evidence and found he had failed to establish the factual basis in support of his claim. Hence, it dismissed his appeal.
Legal principles applicable to judicial review
11. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[4].
12. However, the remedy is a discretionary one. Even if it is shown that the applicant is entitled to be granted a remedy on judicial review, it is well established that the court may exercise discretion not to grant a remedy 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: see De Smith’s Judicial Review (7th ed)[5] and Judicial Review by Supperstone, Goudie and Walker (5th ed)[6], as approved by the Court of Appeal in AW v Director of Immigration and William Lam[7].
Grounds for judicial review
13. The Applicant did not advance any grounds for judicial review in the Form 86. In his supporting affirmation, he said that the Immigration Department disregarded the danger and threats he would face if he returned to his country. In effect, he was seeking to challenge the finding of fact by the Board. For reasons as explained in the preceding section, this is impermissible. In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.
Discussion
14. The Applicant’s claim for non-refoulement protection had been rejected by the Director. In dismissing his appeal against the Director’s Notice, the Board held he was not a truthful witness and that he fabricated the entirety of his claim in order to stay in Hong Kong for reasons unrelated to those he put forward in his claim for protection. On the basis of these findings, the Board’s Decision is unreproachable. These findings are finding of facts and the Applicant’s credibility which are solely within the realm of the Board, which this Court in a judicial review will not intervene save for errors of law, procedural unfairness or irrationality.
15. The Applicant having deceased, there is no need to investigate the propriety of the Decision. The Applicant sought non-refoulement protection from the risk to his life. Despite and regardless of the Board’s Decision, on the fact he had enjoyed his protection in Hong Kong since June 2005 for nineteen years until the conclusion of his life. He had no need for a remedy. Even if he were entitled to a remedy, the Court will not exercise its discretion to grant him the remedy as it would be otiose or pointless to do so. Furthermore, this is a personal action, confined to the Applicant only. The Applicant having passed away, the action will serve no practical purpose. Thus, the only appropriate course for the Court to take is to refuse to grant the relief and put an end to the matter before it by refusing the leave application.
Conclusion
For the above reasons, the leave application is refused.
Dated the 15th day of October 2024.
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( Seline Sze )
for Registrar, High Court
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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:
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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)).
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Sent to the Applicant
on 15/10/2024
Ullah Md Habib
Applicant’s ref. no:
Nil. |
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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 15/10/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6090/17/2/89/B746
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2977/16 (Formerly RBCZ 2813/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[2] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[3] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[4] [2018] HKCA 524 at [14(1)]
[5] at §§18-054 to 18-056; at §18.18.1)
[6] at §18.18.1
[7] CACV 63 of 2015, 3 November 2015
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