ISLAM MOHAMMAD NAZRUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2611/2018

[2020] HKCFI 972

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2611 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 was absent for a hearing on 24 April 2019, as a result of which his application was dismissed by an Order of the same date (“the said Order”) for want of prosecution.

2.  By summons dated 10 May 2019, the applicant applied for extension of time for his appeal against the said Order. His summons was fixed to be heard on 12 July 2019.

3.  The applicant appeared before me. He explained that he was not feeling well on the hearing date and he had gone to the hospital for treatment. He produced a medical chit for his proof.

4.  I accepted his explanation and I set aside the said Order under O.32, r. 6 of the Rules of the High Court (“RHC”). I shall now proceed to hear his application.

The applicant

5.  The applicant is a Bangladeshi nation. He sneaked into Hong Kong from Shenzhen by boat on 23 July 2015.  He was arrested by police on the same day. He was then referred to the Immigration Department for investigation on 24 July 2015.  He raised a non-refoulement claim on 25 July 2015.

6.  In support of his claim, he said that if refouled, he would be harmed or killed by members of the Awami League (“AL”) because of his affiliation with Bangladesh Nationalist Party (“BNP”), in particular, by its supporter Abdul Ruoff, who was not happy of the applicant’s relationship with his sister, Nipa Akter.

7.  In March 2013, because of a small quarrel over a heap of rubbish outside Ruoff’s premises, Ruoff got a group of people to gather outside the applicant’s house. They threatened to kill him. They threw stones and smashed the windows. Other neighbours came and they dispersed. He reported the matter to police. The police first ignored him, then when he pursued further, demanded bribe to make investigation. He refused to pay. Rouff threatened to kill him and he was scared. He moved to live in other places of his aunt and friends. He travelled to India, Nepal and back to Bangladesh in order to avoid Rouff. Finally, in July 2015, he left Bangladesh for China and came to Hong Kong by boat from Shen Zhen.

The Director’s Decision

8.  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.     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”).

9.  By Notice of Decision dated 13 September 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

10.  The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 7 August 2018.

11.  By Decision dated 26 October 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

12.  The Board considered the applicant’s evidence. For the reasons set out in the Board’s Decision, it rejected the applicant’s evidence in support of his claim.

a.     At the hearing, the applicant was evasive to most of the questions put to him. His account was vague and lacking particulars. Given opportunities, he was unable to address its concern. It appeared that he was exaggerating his case with new allegations which were not mentioned before or which were inconsistent with what he previously said. There were suspicious allegations, inconsistencies and contradictions between his evidence to the Director and at the hearing [33].

b.     On the whole, it found that the applicant was not telling the truth. His case was vague and unbelievable. There was doubt as to whether a robbery charge had been laid against him. All other matters including the death threats and attacks by Ruoff and the AL people were not accepted [40].

Application for leave to apply for judicial review

13.  He filed Form 86 for leave to apply for judicial review of the Board’s Decision.

14.  In his affirmation in support of his application, the applicant relied upon the grounds below.

1.     The hearing bundle was in English and he did not have language assistance.

2.     He did not have sufficient time to prepare for his appeal.

3.     He was confused at the hearing.

4.     The Board relied upon materials which are not officially recognized, hearsay or outdated.

DISCUSSION

15.  The applicant appeared before me. He confirmed that he was able to speak freely and tell his stories fully before the Adjudicator. He considered that he had had a fair hearing before the Board.

16.  The Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 §14 held that the primary decision makers are the Director and the Board and 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.

17.  It is quite clear that the Board had rejected the facts in support of his claim. There is no factual basis for his claim.

18.  Lack of language assistance does not constitute a ground for his application as held by the Court of Appeal in Re Magar Surendra [2019] HKCA 667, 13 June 2019. At paragraph 19, it said:

“… …The inability to understand the hearing bundle before the board as a result of lack of language or other assistance, even if true, is irrelevant.”

19.  The applicant was unable to identify the materials he complained. It is therefore only his bare assertion.

20.  All the above grounds fail.

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

CONCLUSION

22.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. 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