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HCAL 2818/2018
[2021] HKCFI 2457
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2818 of 2018
BETWEEN
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Miah Md Jalal |
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 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 K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. This is the applicant’s application for leave to apply for judicial review of the Decision dated 22 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.
The applicant
4. The applicant is a citizen of Bangladesh. He came to Hong Kong illegally by boat on 3 January 2015 and was arrested by police. He lodged non-refoulement claim with the Immigration Department on 10 January 2015.
5. He claimed that if refouled, he would be harmed or killed by Abdur Rahman and Enam of the Awami League (“AL”) and their associates because of his political affiliation with the Bangladesh Nationalist Party (“BNP”). He refused to quit BNP to join AL as requested by Rahman and Enam. As a result, he was threatened that if he refused to do so, he could not live in the same locality. He was then assaulted by Rahman and Enam and their associates with weapons of iron rods, hockey sticks and choppers. He was seriously injured and had to stay in hospital for treatment. Those people even burnt down his house. He had reported the matter to police. The police did not make investigation into his complaints. Instead, they framed false charges against him and his brother. He was detained by police and was hit by batons inside the police station. He attended court and was denied bail. He was detained in jail for one and half months. After he was granted bail, he fled Bangladesh for Hong Kong. He was informed by his mother in Bangladesh that his brother was falsely charged with indecent assault. Details of his story are set out in paragraph 8 of the Director’s Decision described below.
The Director’s Decision
6. The Director considered his application in relation to the following risks:
a. risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);
c. 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
d. 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”).
7. By Notice of Decision dated 23 November 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk of him being harmed or killed if he returned to Bangladesh was assessed to be low [14]; that state protection was available to him [16] and internal relocation was an option open to him [17].
The Board’s Decision
8. The applicant appealed against the Director’s Decision. He attended the hearing before the Board on 14 June 2018.
9. By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision. The Board had conducted a protracted cross-examination of his evidence. The Board finally rejected his factual evidence for the reasons that his evidence was inconsistent with his statement given to the immigration officer and he was unable to give an explanation for such inconsistencies. The Board concluded that he had not told the truth in relation to his claims to have been a supporter/associate and member of BNP and to have been pressured and threatened and assaulted by AL supporters and members and leaders, and to have been arrested and assaulted and tortured by police, and to have been the accused person in false cases. In a nutshell, the Board did not accept that the applicant feared returning to Bangladesh for the reasons he had claimed or for any other reasons. The Board also rejected that he would be subjected to those risks he alleged if he returned to Bangladesh. See paragraphs 54-117 of the Board’s Decision.
Application for leave to apply for judicial review of the Board’s Decision
10. The applicant filed Form 86 on 10 December 2018 to apply for leave to apply for judicial review of the Board’s Decision.
11. In his affirmation in support of his application, he attached the Board’s Decision without specifying any reasons in support of his application.
DISCUSSION
12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
13. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13.… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”
14. He has given no ground in support of this application.
15. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
16. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.
CONCLUSION
17. I therefore refuse to grant leave for the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.
Dated the 26th day of August 2021
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(K.H. LI) |
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for Registrar, High Court |
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 26/08/2021
Miah Md Jalal
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 26/08/2021
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9439/17/12/106/B1079
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2414/17 (Formerly RBCZ 10209/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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