MD BABOR ALI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL523/2019

[2021] HKCFI 882

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 523 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the Applicant in open court.

1.  Application for leave to apply for Judicial Review be reinstated; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.  The applicant was born on 2/3/1969 at Alam Danga, Chua Danga, Bangladesh.  He received education for 12 years.  He was married with a 13-year-old son.  His wife, son and siblings were in Bangladesh.  He operated a wholesale food shop in Damur Huda which was about 25 km from Alam Danga.

2.  The applicant entered Hong Kong on 2/6/2007 with a Bangladesh passport and a double entry visa for Hong Kong.  He was arrested by the police in October 2007 for overstaying.[1]  He lodged his torture claim in January 2008.  By that time, his refugee claim had already been rejected by the UNHCR.  

3.  His torture claim was assessed under the USM [2]. It was rejected by the Director on 29/9/2014.  His appeal was dismissed by the TCAB on 31/12/2015.  He filed a leave application for judicial review on 6/1/2016 in relation to both decisions (HCAL 5/2016).

4.  This court refused leave for judicial review on 5/8/2016.  According to the court record, the applicant had not appealed against this decision.

5.  Later on 3/1/2017, the Director invited the applicant to file additional evidence in relation to the claim based on BOR 2.  The applicant did not file any additional evidence.  The Director rejected the claim on BOR 2 based on the existing information.  The TCAB dismissed his appeal on 30/1/2019.  The applicant filed the leave application on 22/2/2019 in relation to this decision (HCAL 523/2019).

6.  During the interim, the applicant filed a letter dated 10/12/2020 requesting for cancellation of the leave application. He indicated in the letter: “my problem is resolved in Bangladesh and there is no danger for me upon return.”  On 30/12/2020, this court granted leave for the withdrawal of the leave application.

7.  On 24/2/2021, the applicant filed a letter requesting to “re-open” the leave application.  In his letter, he stated: “…But all efforts are in vain, the problems are remains and the problems are increased seriously.  My enemy is still looking for me…I cannot return back to there.”  This court allowed his application to re-instate the leave application.

8.  As the applicant had not filed any additional evidence, the factual basis of his leave application would be the same as set out in the decision in HCAL 5/2016.  This court would adopt the factual background in that decision.  There is no need to repeat.

9.  This court understands that the applicant maintains his fear that he would be harmed or killed by members of the Jamaat and Shibir Muslim Group (‘JS’) if he returned to Bangladesh.

The decision of the Adjudicator

10.  The Adjudicator concluded in his decision dated 31/12/2015 that no reliance could be placed on the applicant’s evidence either that he had converted to Christianity from Islam or his account of other matters relevant to his claim.  The news reports submitted by him during the oral hearing on 8/4/2015 could not persuade the adjudicator to take a different view of his credibility.  In the absence of any additional evidence, the adjudicator opined that there was no need to hold another oral hearing.

11.  Based on the reasoning in the decision dated 31/12/2015, the adjudicator rejected the appeal.  The applicant failed to establish any real risk of violation of right to life under BOR 2.

Judicial Review

12.  In his application for re-instatement of HCAL 523/2019, the applicant did not point out any specific error in the decision of the TCAB.  He had not indicated any intention to file additional evidence nor did he request for an oral hearing.

13.  In the absence of any additional evidence, the adjudicator was right to consider the BOR 2 claim based on the existing evidence.  His decision not to hold another oral hearing was reasonable.  In my view, his conclusion to reject the story of the applicant was correct.  I agree with the Adjudicator.

Conclusion

14.  Given the above analysis, I do not find any error in law or in procedure.  The decision is rational.

15.  In my judgment, the Applicant’s claim is not reasonably arguable.  There is no realistic prospect of success.  I refuse leave for judicial review.

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