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HCAL1124/2018
[2019] HKCFI 394
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1124 of 2018
BETWEEN
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Hossan Mohammad Anwar |
Applicant |
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The Director of Immigration |
1st Putative Respondent |
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The Adjudicator of the Non-refoulement Claims Petition Office |
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 K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):
THE APPLICATION
1. This is the applicant’s application for leave for judicial review against the decision of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).
The applicant
2. The applicant is a Bangladeshi national. He came to Hong Kong through China illegally on 10 March 2015. He was arrested by police on the same day. On 13 March 2015, he lodged his non-refoulement claim. He was released on recognizance. However, he was arrested by police for taking employment without the Director’s permission and was convicted and sentenced to 15 months’ imprisonment.
3. The applicant claimed that if he was repatriated to Bangladesh, he would be ill-treated or even killed by FOYEZ, a supporter of Awami League (“AL”) and other people of AL.
4. In his statements given to the Director and the Board, the applicant said that he had entered into a contract for sale and purchase of a piece of land with Foyez. He had paid the deposit. Before the completion date and after AL had won the election, Foyez backed out and even alleged that he had not paid the deposit for the purchase. In June 2014, he met Foyez on the street with a number of his people holding wooden sticks. Foyez told him not to report the matter to the police and he hit the applicant. Other people joined in and beat him up. He asked for assistance from the elders of his village. But they did not help him because Foyez was of AL. He decided to come to Hong Kong.
The Director’s Decision
5. 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. 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 under RC”).
6. By Notice of Decision dated 24 November 2017 (“the Director’s Decision”), the Director refused his application on the ground that he failed to substantiate his claims.
The Board
7. The applicant appealed to the Board and attended a hearing before the Adjudicator on 18 May 2018.
8. By Decision dated 12 June 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.
9. Having considered the evidence, the Adjudicator found that it was a case of dispute over the sale of land between the applicant and Foyez and it had nothing to do with political differences between them [33]; that Foyez had no intention of killing him [38]; the injuries as alleged did not amount to torture within the meaning of section 37 U(1) of the Immigration Ordinance [39]; that relocation was an option open to the applicant [53].
Application for leave for judicial review
10. By Form 86 dated 19 June 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the decisions the Director and the Adjudicator of the Board respectively.
11. In his affirmation in support of her application dated 7 June 2018, he referred to the grounds attached to Form 86 as set out below:
(1) the Director had failed to maintain high standard of fairness in the screening;
(2) the Director had failed to pay attention to state acquiescence in his case;
(3) the Director had failed to give proper weight the Country of Origin Information in favour of his case;
(4) the Director had failed to appreciate that there are corruption and incompetency in his country;
(5) the Board had not made enough enquiry into the case before making the determination;
(6) it was wrong for the Board to require him to adduce evidence as he was being detained at the Immigration centre; and
(7) the Board had not given him sufficient chance to adduce the evidence.
DISCUSSION
The Director’s Decision
12. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board was created by the legislature, with wider power that this Court to make investigations in the matter. The Board had heard his appeal and made its Decision.
13. Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.
14. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.
The Board’s Decision
15. The burden is on the applicant to set out the grounds in support of his application, such grounds have to bear substance, not just “putting forward a bare and flimsy assertion” Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29.
16. Grounds (1) to (5) above are bare allegations without any facts or particulars in support of them. In my view, they do not constitute any substantive ground in support of this application.
17. As to ground (6), the Board was entitled to ask the applicant for evidence to prove his case.
18. As to ground (7), I asked the applicant what evidence he intended to adduce to the Board. He was unable to specify the evidence himself.
19. In the circumstances, I find that the applicant is unable to show that he has any reasonable chance of success in his proposed judicial review.
CONCLUSION
20. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for his proposed judicial review. Accordingly, I dismiss his application.
Dated the 22nd day of February 2019
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(Alan Ngan)
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
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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 22/2/2019
Hossan Mohammad Anwar
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 22/2/2019
The Director of Immigration
1st Putative Respondent’s ref. no.:
QA T/C 2778/17 (formerly RBCZ 10906/15)
The Adjudicator of the
Non-refoulement Claims Petition Office
2nd Putative Respondent’s ref. no.:
USM 9348/17/12/15/B1070
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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