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HCAL 957/2017
[2018] HKCFI 1522
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 957 of 2017
BETWEEN
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Nesim |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-Refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
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 Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The applicant is a 40-year-old national of Bangladesh who arrived in Hong Kong on 20 June 2003 with permission to remain as a visitor for 14 days but thereafter he did not depart and instead overstayed until he was arrested by the police on 10 August 2009, for which he was convicted and sentenced to five months imprisonment. After his discharge from prison and when he was issued with a removal order, he lodged a torture claim with the Immigration Department on the basis that if he returned to Bangladesh he would be harmed or killed by members of rival political party Awami League (“AL”). He has since been released on recognizance pending the determination of his claim.
2. The applicant was born and raised in Nageswari, Knaigram, Bangladesh. After leaving school he worked as a salesman and joined the political party Jatiyo Party (“JP”), and in 2002 he was elected as the party leader.
3. In a local election in March 2002 there were rallies by both rival parties during which their supporters clashed in a fight when the applicant hit a leader of AL causing injuries to his nose and cuts to other parts of his body that he had to be carried away by his supporters, and when the AL supporters tried to attack the applicant in revenge, he managed to escape and hid in his sister’s home in Dhaka.
4. Later when the applicant was told by his family that the AL people were looking for him for revenge and had made a false claim against him with the police, and was advised to leave Bangladesh for his own safety, the applicant flew out of Bangladesh on 20 June 2003 for Hong Kong where he overstayed and subsequently lodged his torture claim, and later for non-refoulement protection by completing a Supplementary Claim Form on 29 August 2014 with legal representation from the Duty Lawyer Service.
5. By a Notice of Decision dated 20 March 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).
6. In his decision the Director found the low intensity and frequency of past ill-treatment from the AL people indicative of a low risk of future harm upon the applicant’s return to Bangladesh as after all these years it is doubtful that the AL people would still have any adverse interest in him, that in the absence of any evidence of state or police involvement in the threats that state protection would be available to the applicant if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 166 million people spread across a vast territory of more than 140,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with working experience to move to other areas away from his home district such as Dhaka where he can safely live and work without fear of any threats from the AL people.
7. By a Notice of Further Decision dated 30 December 2016 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation for him to submit additional facts relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).
8. By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal he filed on 31 March 2015, and for which he attended an oral hearing on 21 December 2016 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 17 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.
9. In its decision the Board found the suffering allegedly sustained by the applicant did not attain a minimum level of severity and was not held to be subjected to torture or CIDTP, that he had suffered no ill-treatment physical or mental, and that it was not accepted that he would face a genuine or substantial risk of being subjected to ill-treatment or of having his absolute or non-derogable rights or right to life being violated upon his return to Bangladesh.
10. On 27 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board’s decision, but neither in it nor in his supporting affirmation of the same date did he put forward any grounds for his intended challenge other than just repeating his claim as follows:
“ I am submitting this ground regarding my U.S.M. case, namely I have life problem in my country. I was unable to submit my document proof, I will try my best to obtain all my document as soon as possible. In my country my enemies are very powerful with political influence, they belong to the present ruling party. Many times they try to kill me and injured me too. I like to remain in Hong Kong until my problem is finished. If I go this time my life becomes danger and uncertain.”
11. The applicant has since not submitted any further documentary proof or representation save for three pages of documents in Bengali without any translation which cannot be relied on, and hence there are no grounds or reasons put before the court for his intended application for judicial review. As noted by the Court of Appeal in TK v Jenkins [2013] 1 HKC 526, the court in judicial review does not sit on appeal from the decision of the Director or the adjudicator in dismissing the claim, but instead only plays a supervisory role by looking at its legality under the public law involving usually the broad grounds of any error of law committed by the Director or adjudicator, or any procedural unfairness, or whether the decision is irrational or Wednesbury unreasonable in the public law sense.
12. Here the applicant did not even say that the Director or adjudicator had erred in their decision or that there was any procedural unfairness, and having considered their decisions with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.
13. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.
Dated the 10th day of August 2018.
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(NG Ka-wing)
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 his 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 10 August 2018
Nesim
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 10 August 2018
Torture Claims Appeal Board/
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 1298/15/3/218/B194
Director of Immigration
2nd Putative Respondent’s ref. no.:
RBCZ 9001869/16
(formerly RBCZ 2119/09)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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