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HCAL 846/2017
[2018] HKCFI 1454
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 846 of 2017
BETWEEN
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Hossain Monir |
Applicant |
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Torture Claims Appeal Board |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
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 36-year-old national of Bangladesh who entered Hong Kong illegally in 2012 and was arrested by the police on 15 August 2013. After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 23 August 2013 on the basis that if he returned to Bangladesh he would be harmed or killed by the supporters of rival political party the Awami League (“AL”). He has since been released on recognizance pending the determination of his claim.
2. The applicant was born and raised in Kuarpur Village, Domshar Union, Shariatpur District, Bangladesh where his father, his wife and two children still live. After leaving school he worked as a farmer in his farmland and became a supporter and later a member of the Bangladesh Nationalist Party (“BNP”) regularly attending meetings, rallies and distributing posters for his party.
3. One day in late 2000 while he was discussing party matters with other BNP members in the village market, they were ambushed and attacked by 15 AL supporters with hockey sticks and knives and the applicant was hit all over the body and with his forehead slashed by a knife for which he was hospitalized for two weeks.
4. On another occasion in early 2001 when he was marching with other BNP members in a protest against the violent behavior of the AL supporters, they were attacked by AL members and supporters with the applicant sustaining cuts and bruises all over his body which necessitated treatments at a medical clinic.
5. After the second incident and for the next 11 years the applicant kept receiving threatening phone calls from AL supporters almost every other day that by mid-2012 he found he could no longer bear the constant threats and harassments from the AL people that he decided to depart Bangladesh for his own safety when he flew to China on 17 June 2012, and from there he sneaked into Hong Kong and subsequently lodged his non-refoulement claim, for which he completed his Non-refoulement Claim Form on 7 December 2015 with legal representation from the Duty Lawyer Service.
6. By a Notice of Decision dated 28 April 2016 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”).
7. In his decision the Director found on the applicant’s own case that there were no physical threats or harm to him from the AL people after the second incident in 2001 during which he was attacked as a group and not specifically being targeted by them which is indicative of a low future risk of harm to him upon his return to Bangladesh, that after all these years that it is highly unlikely that they would still have any adverse interest in him, that state protection would be available 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 168 million people spread across a vast territory of more than 148,000 square kilometers for the applicant to safely move to other areas away from his home district if those threats from the AL people still persist such as Dhaka or Chittagong.
8. By a Notice of Further Decision dated 28 June 2017 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 which may be relevant to 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”).
9. 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 9 May 2016, and for which he attended an oral hearing on 22 September 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 26 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.
10. In its decision the Board found the applicant’s failure to give any reasonable explanation as to why in the absence of any physical threats from the AL people after 2001 and for the next 11 years living in Bangladesh without any incidents that the applicant suddenly found it necessary to leave his country in 2012 to come to Hong Kong has seriously affected the credibility and reliability of his evidence, and that in any event as state protection and reasonable internal relocation alternatives are available to him for his safe return to Bangladesh, it concluded that there is no justification for affording him non-refoulement protection in Hong Kong.
11. On 6 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but neither in it nor in his supporting affirmation of the same date did he set out any ground for his intended challenge other than just repeating his claim as follows:
“ I have real dangerous problems in my country for me because I belong to BNP party member of my country and AL party members are try to kill me, and two times they make me injured. I was admitted in hospital too but luckily I save my life at this time. If I go to my country my life become uncertain sometime can lose the life too. I will try my best to submit my medical certificate and my other supporting document too therefore give me the time to save my life.”
12. Clearly these are not reasons or grounds for judicial review as the applicant did not even say that the Board had erred in its decision or that there had been procedural unfairness in the process of determining his claim or hearing his appeal. 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 decisions 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 the adjudicator, or any procedural unfairness, or whether the decision is irrational or Wednesbury unreasonable in the public law sense.
13. Nevertheless, having proceeded to consider the decisions of both the Director and the Board 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.
14. 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 13th day of June 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 13 July 2018
Hossain Monir
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 13 July 2018
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 3638/16/5/56/B493
Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9002235/17 (RBCZ 466/14) T5S12
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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