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HCAL1259/2018
[2019] HKCFI 413
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1259 of 2018
BETWEEN
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Khalil |
Applicant |
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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 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 Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).
The applicant
2. The applicant is a Bangladeshi national. He came to Hong Kong illegally on 5 May 2008. He was arrested by police and referred to the Immigration Department on 9 May 2008. On 14 September 2016 he lodged his non-refoulement claim.
3. He claimed that if he were repatriated back to Bangladesh, he would be harmed or killed by the members of the Bangladesh Nationalist Party (“BNP”).
4. In his statements to the Director, he stated that he was a supporter of Awami League and he had been threatened and attacked a number of times by the BNP members because he refused to join their party. They also demanded money from the applicant. He had moved to another place where he was safe without inference from them. However, he felt unsafe and finally sneaked into Hong Kong through Macau and China.
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 11 November 2016 (“the Director’s Decision”), the Director refused his application for the reason that his non-refoulement claim was not substantiated.
The Board
7. The applicant appealed to the Board. On 20 September 2017, he attended a hearing before the Adjudicator of the Board.
8. Having considered the applicant’s evidence, the Board, by its Decision dated 19 June 2018 (“the Board’s Decision”) refused his appeal and confirmed the Director’s Decision.
9. The Board was not persuaded by the applicant’s explanation for the discrepancies in his evidence. See §49 of the Board’s Decision. The Adjudicator even went to the extent that the applicant manufactured his account of having been physically threatened by BNP members in relation to extortionate demands. See §51. The Adjudicator rejected the applicant’s evidence in relation to the threats to his family too. See §52.
10. Since the Board rejected the applicant’s evidence, there is simply no factual basis for his claim.
Application for leave for judicial review
11. By Form 86 dated 4 July 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 of the Director and the Adjudicator of the Board respectively.
12. In his affirmation in support of his application dated 4 July 2018, he set out the reasons in support of his application below:
(1) procedural impropriety for there being no sufficient analysis and inquiries on the Country of Origin Information and there being cherry picking of the information adverse to the applicant’s claim;
(2) the Director and the Adjudicator failed to consider extended state acquiescence; and
(3) it was unreasonable for the Director and the Board not to believe him that he was attacked and that the enmity arose from his political view and being a supporter within the Awami League Party, not from private dispute.
DISCUSSION
The Director’s Decision
13. 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 has wider power than this Court to make investigations in the matter. The Board had heard his appeal and made its Decision.
14. Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.
15. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.
The Board’s Decision
16. It is true that the Adjudicator did consider the applicant’s evidence before the Immigration officer. He was entitled to do so under section 18 of Schedule 1A of the Immigration Ordinance, Cap 115.
17. Grounds (1) (2) and (3) are the applicant’s personal view without any evidence in support. They also relate to the finding of the fact, which is squarely within the province of the Director and the Board as held by the Court of Appeal. See Ali Haider CACV8/2018, [2018] HKCA 222 at §§13 & 14.
18. For the reasons above, I find that the applicant is unable to show that there is any reasonable chance of success in his judicial review.
CONCLUSION
19. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant leave for his judicial review, Accordingly, I dismiss his application.
Dated the 25th 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 25/2/2019
Khalil
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 25/2/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 5291/16/11/230/B679
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 1485/08 (formerly RBCZ 1051/08)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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