UDDIN MD RUKAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2296/2019

[2024] HKCFI 3489

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2296 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and the Applicant being absent in open court;

The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 9 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Torture Claims Appeal Board (“the Board”) dated 1 August 2019 (“Board’s Decision”). The Board had dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 26 November 2018 (“Director’s Decision”) who refused the applicant’s claim for non-refoulement protection.

2.  As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 21 November 2024. A notice of hearing with a reminder[1] of the consequence of absence dated 8 November 2024 was sent to the applicant’s last known address by ordinary post. The applicant did not turn up at the hearing. A telephone call was made to the applicant’s given telephone number, but to no avail. The information before this court shows that that the said notice of hearing has not been returned through the post.

3.  In the circumstances, this court will dispose of the Leave Application in according to the materials already placed before the court.

Background

4.  The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.

5.  The applicant came from Bangladesh. He illegally arrived in Hong Kong on or around 25 November 2015 by travelling from Mainland China by boat. On or around the same day, the applicant was arrested for being a suspected illegal immigrant. He was detained and later lodged his non-refoulement claim dated 29 November 2015 covering all applicable grounds – risk of torture[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5] under the USM.[6] The claim was based on his fear of being harmed or killed by members of Awami League Party, which was a rival political party against another Bangladeshi Nationalist Party, of which the applicant was a member.

6.  On 22 December 2015, the applicant was released on recognizance but failed to report to the Immigration Department from 12 September 2017. Consequently, he was re-arrested on 20 December 2017. On 21 June 2018, he was arrested for and convicted of possession of dangerous drugs, and was given a suspended sentence He had history of failure to report to the Immigration Department when he was on recognizance.

7.  The Director decided against the applicant’s claim on all applicable grounds. The Director found that there was no indication that the state was involved and the applicant was not a target of the state. State protection was available and internal relocation alternatives were reasonable and available. Hence, the appeal to the Board.

8.  On 10 July 2019, the applicant attended a hearing before the Board. At the hearing, the applicant informed the Board that he had not been able to submit documents as he was previously in detention. The Board rejected this explanation, and found it was a lame excuse as the applicant had been in Hong Kong since 25 November 2015. He should have had ample time to gather documents and prepare his submissions. In the Board’s Decision, the Board found that the applicant had not made out a case for non-refoulement, and in any event, state protection was available and the option of internal relocation was not unduly harsh.

Legal principles applicable to judicial review

9.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

10.  The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation of the same date, he exhibited a copy of the Board’s Decision and deposed that all his statements were true. There were no evidence or identification of errors in support of the intended challenge.

11.  The Board’s Decision was arrived at with the benefit of a hearing in which the applicant was able to clarify matters raised by the Board. After examining the applicant’s evidence in detail, the Board found that the applicant’s conduct was inconsistent with someone who needed non-refoulement protection due to his failure to report for recognizance twice. The Board’s finding of the applicant’s case in Bangladesh was made with reference to the relevant country of origin information. These are findings of fact, which the court in a judicial review will not interfere with.

12.  Having rigorously examined the Director’s Decision and the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness or irrationality in the Board’s Decision. The Board had properly examined the applicant’s issue with commonsense and high standard of fairness: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Order

14.  The Leave Application be dismissed.

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