MAMUN v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2392/2018

[2020] HKCFI 1571

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2392 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 19 October 2018 (“the Board’s Decision”).

2.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to her. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 27 September 2019.

3.  Leave was granted to the applicant to amend Form 86 by deleting the Director of Immigration as respondent and by deleting the Director’s Decision to be replaced by the Board’s Decision.

The applicant

4.  The applicant is a national of Bangladesh.  On 25 November 2013, he came to Hong Kong illegally through China by boat. He was arrested by police on 25 November 2013. On 26 November 2013, he was referred to the Immigration Department for investigation. He lodged his non-refoulement claim on 27 November 2013.

5.  He claimed that if refouled, he would be ill-treated or killed by Ashraf, a branch leader of Bangladesh Awami League (“the AL”), his people and the people from the AL because of him being office-holder in the student wing of the Bangladesh Nationalist Party (“the BNP”) and the money dispute with them.

6.  He claimed that the AL had been the ruling party during these years. In May 2013, he was the Vice-Chairperson of Medini Mondal Union branch of the Bangladesh Jatiotabadi Chatra Dal (“the JCD”). He set up his fruit wholesale business in Bangladesh and he had leased a shop for ten years at a fixed rent. At this period of time, Ashraf recruited him to join the AL. He refused. However, at the advice of his brother, he had invested 300,000 Taka in a company controlled by the AL. He did not receive dividends from the company. He went up to the company, but was turned down, saying that he should first join the AL. Then the following events led him to leave Bangladesh.

a.In May 2013, Ashraf together with 10 followers went to his shop and told him to terminate the lease in order to join the AL. They threatened that they would assault him if he refused to do so.

b.In September 2013, these people approached the landlord, asking him to terminate the lease. They took away the lease from the landlord. They then went to lock up the shop. The landlord opened it. The next day they came to vandalize the shop.

c.Two weeks later, they came to slap his face when he was talking to the landlord on the lease. They also threatened him that they would assault him severely if he continued with his business.

d.Two weeks later, they demanded money from him. they asked for one million BDT.In the same evening, those people came on motorbikes. They hit him with bamboo sticks. He screamed for help. They dispersed. He was injured. It took 10-15 days to recover.

e.In October 2013, whilst he was talking to the landlord in the market, Ashraf’s men came. Some of them were carrying firearms. They hit him with bare hands. He was slapped across the face, kicked and punched all over his body. He did not suffer from serious injury though. The pain lasted for around two to three days.

f.  He obtained the rental deposit from the landlord as he decided to leave his country soon. He moved to his cousin’s sister’s home. His brother told him that Ashraf and his people were still looking for him. On 21 November 2013, he left Bangladesh for China.

The Director’s Decisions

7.  The Director considered his application in relation to the following risks:

a.Risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.risk of torture under Part VIIC of the Ordinance (“Torture risk”);

c.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”);

d.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

e.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”).

8.  By Notice of Decision dated 19 March 2018 and Notice of Further Decision dated 19 June 2017 (“the Director’s Decisions”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

9.  The applicant appealed to the Board against the Director’s Decisions and he attended a hearing before the Adjudicator on 6 February 2018. He was represented by the duty lawyer and the Director was represented by Government Counsel with the immigration officer. The case was fully argued before the Board.

10.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decisions.

11.  The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision [66-85], came to the conclusions below.

a.The applicant was not a reliable witness [73].

b.He was making up his story as he went along [77].

c.From the evidence, if there was any truth in it, the incidents were a result of a business dispute rather than the applicant’s political allegiance or position [83].

d.As to state protection the Country of Origin Information indicated that the police had acted even against members of the ruling party if evidence was presented to them [86].

e.Relocation was an option open to him [87].

Application for leave to apply for judicial review

12.  The applicant filed Form 86 dated 29 October 2018 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation, he did not set out any reasons in support of his application other than saying that the Director [by which he meant the Adjudicator] was unreasonable in that he failed to consider all the matters raised in his claim and failed to give adequate reasons for his decision.

DISCUSSION

14.  The applicant appeared before me. He confirmed that he understood the reasons of the Board’s Decision. He had raised no complaint about the proceeding before the Board.

15.  I put the Board’s findings to him and asked him if he had any comments on them. He did not pass any comments on them. Instead, he asked this Court whether the Director or this Court could guarantee his safety if he returned to Bangladesh. I told him that the hearing was not to find out if anyone, including this Court, could give him any guarantee for his safety if he returned to Bangladesh. The hearing was for this Court to assess whether he had had a fair hearing before the Board and whether the Board had applied the appropriate statutory provisions and the Convention to his case.

16.  The Court of Appeal in Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that the immigration officer and the Adjudicator are the facts finders. Since the Board did not accept his evidence on the facts of his case, he simply has no factual basis in support of his claim. Paragraphs 66-85 of the Board’s Decision have clearly set out the basis of the assessment and the reasons for the Board’s findings. There is nothing amiss in the assessment of the facts by the Board.

17.  The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

18.  Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant him leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

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