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HCAL 2290/2018
[2021] HKCFI 2082
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2290 of 2018
BETWEEN
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Shahid Mohammad |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
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 To:
Leave to apply for Judicial Review refused.
Observations for the Applicant (Order by Deputy High Court Judge To):
Introduction
1. This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 10 August 2018 (the “Decision”) allowing his application to withdraw his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 18 April 2018 rejecting his claim for non-refoulement protection (the “Notice”).
2. The Applicant is a Bangladeshi national. He had previously come to Hong Kong on 6 November 2006 with permission to remain for two days only. He overstayed thereafter. On 9 March 2007, he surrendered to the Immigration Department and then lodged a torture claim under Part VIIC of the Immigration Ordinance on 12 March 2007. His claim was rejected on 15 April 2011. He was repatriated to Bangladesh on 23 May 2011.
3. On 16 October 2014, he surrendered again to the Immigration Department, claiming to have sneaked into Hong Kong from the Mainland on 19 September 2014. On 15 January 2015, he applied for non-refoulement protection. His claim was taken to be a subsequent claim and was assessed on all applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4]. By the Notice dated 18 April 2018, the Director rejected his claims. On 30 April 2018, he appealed to the Board against the decision in the Notice. His appeal was scheduled to be heard on 10 August 2018.
4. At the hearing, the Applicant applied to withdraw his appeal. Having regard to all available information before the Board, the Board was satisfied that the application was freely sought; that the Applicant understood the consequences of the withdrawal; and that there was good reason for the proposed withdrawal of the appeal, namely that the Applicant considered it safe to return to Bangladesh, the Board allowed the application. The Board directed that the appeal/petition be withdrawn and that the immigration officer’s decision in the Notice was confirmed (the “Decision”).
5. Two months later, on 22 October 2018, the Applicant applied for leave to apply for judicial review of the of the Board’s Decision. In his supporting affirmation filed on the same day, he sought to quash the Director’s decision in the Notice and the Decision of the Board. He also asked for an oral hearing if leave is not granted.
6. Subsequently, four hearings had been scheduled for the Applicant on 14 April, 5 May, 27 May and 23 June 2021. He did not appear. Attempts had been made to contact him on the telephone at the first two hearings. The Applicant did not answer. The court staff was able to reach the Applicant on the telephone at the third hearing on 27 May 2021, he said he had not received the notice of hearing as he had moved. He indicated he would withdraw the application.
7. The Applicant took no steps to withdraw his application. By a letter dated 4 June 2021, the Applicant was informed that the hearing of his application was adjourned to 23 June 2021 with a direction that it may be dismissed for want of prosecution or determined on paper if he does not appear.
8. On 21 June 2021, the Applicant wrote to the Court to withdraw his application for leave to apply for judicial review saying that his problem in his home country was solved.
9. The Applicant did not appear at this fourth hearing on 23 June 2021. When the court staff reached him on the telephone, the Applicant said that he could not attend the hearing. This Court did not consider his letter dated 21 June 2021 effective to withdraw his application for leave to apply for judicial review supported by a statement made under affirmation. The Court proceeded to determine his application on paper.
The Applicant’s case on non-refoulement claims
10. The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form (“NCF”) which was prepared by him with assistance of the Duty Lawyer Service.
11. The Applicant used to be a member of Awami League (“AL”) in Bangladesh. AL won the general election in 2008 and became the ruling party since. Sometime after his return from Hong Kong in 2011, he learned from his neighbours that Sentu, the General Secretary of AL in District Dhaka, had expelled him from the party. He approached Sentu and requested to have his membership restored. Sentu refused accusing him of having fled the country previously and betrayed AL. The Applicant did not wish to argue with Sentu and left. On 8 September 2011, he joined Bangladesh Nationalist Party (“BNP”) which is the other major political party in Bangladesh.
12. One evening in 2012, six to eight people armed with wooden sticks came to the Applicant’s home and demanded to see him. The Applicant and his wife came out to meet with the group. The group demanded him to account for his involvement with BNP. An argument ensued and the Applicant was assaulted. After the group left, the Applicant went to make a report to the police station. The police refused to accept his complaint. Then the Applicant went to a hospital and was hospitalised for 8 to 10 days.
13. After his discharge from hospital, the Applicant went to stay with his brother-in-law. After learning that Sentu’s relative was living nearby, the Applicant moved out and stayed at the Chittagong Hotel in Shegunbagicha in Dhaka. On 17 September 2014, he flew to Kunming and then to Shenzhen in China. From there, he sneaked into Hong Kong.
14. While in Hong Kong, the Applicant was informed that nothing eventful happened with his wife and youngest son in Bangladesh. He did not consider internal relocation possible option because Sentu will be able to locate him. He did not think the police would give him protection if he returned to Bangladesh.
Grounds for judicial review
15. The Applicant filed a three-page affirmation dated 22 October 2018 in support of his application for leave to apply for judicial review. He said he is a supporter of BNP and that the ruling party, AL is his enemy. The thrust of his ground for application is that his family member tried to solve his problem with AL and told him that his problem had been solved and so he made an application to return to Bangladesh, but his problem had not been solved. He said the next general election will be held on December 2018 and after the general election his problem will be solved. He will return to Bangladesh after his problem has been solved. He also mentioned that AL had lodged a false case against his brother.
16. The fact that his brother is being ill-treated or persecuted is a separate and distinct matter from the Applicant’s non-refoulement claim. The only ground the Applicant is relying on for his leave application is that acting on a mis-information by his family, he withdrew his appeal against the decision of the immigration officer in the Notice. His life will be at risk if he is returned to Bangladesh. Hence, he wished to seek leave to apply for judicial review of the Board’s decision allowing him to withdraw the appeal.
The applicable legal principles
17. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].
Disposition
18. The Applicant has not advanced any proper grounds of application for leave to apply for judicial review which are consistent with the above legal principles. He has not advanced any argument that the Board erred in law, or that its decision in allowing the withdrawal was unreasonable and irrational, or in breach of the high standard of fairness owed to the Applicant, or was in any way procedurally unfair or improper. The Board acted on the information provided by the Applicant, namely that it was safe to return to Bangladesh. The Board had before it the non-refoulement claim form, the record of screening interview, the Country of Origin Information and the decision of the Director in the Notice. Having considered all these papers and the Applicant’s own assertion that it was safe to return to Bangladesh, it was reasonable for the Board to come to the conclusion that the Director’s decision that there was no merit in the Applicant’s non-refoulement claim and that it was safe for the Applicant to return to Bangladesh is correct. There is no evidence that at the time the Board was aware of the mis-information now alleged by the Applicant.
19. The underlying premise of the Applicant’s ground for judicial review of the Board’s Decision must be that the decision of the Director in the Notice was wrong in that it was the result of an error in law, unreasonableness, irrationality or procedural irregularity or breach of the high standard of fairness. The Applicant has advanced no such argument. Even on his own case, he was assaulted once resulting in no serious injury. On such evidence, there could be no valid criticism of the Director’s finding that the ill-treatment he suffered was far below the minimum level of severity such that non-refoulement protection is warranted and his risk of ill-treatment is low. On these findings, there is no factual basis to support the Applicant’s claim for non-refoulement protection.
20. Having rigorously examined the Board’s Decision, the Director’s Notice of Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the he Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. It was on that basis and the Applicant’s assertion that it was safe to return that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds and granted the Applicant leave to withdraw his appeal. The Decision was utterly without fault. There is no realistic prospect of success in the proposed judicial review.
Conclusion
21. For the above reasons, leave to apply for judicial review is refused.
Dated 22nd day of July 2021.
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(Allen Lee) |
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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 22/7/2021
Shahid Mohammad
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 22/7/2021
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11378/18/4/388/B1225
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 853/18 (formerly RBCZ 17/18)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at para 14(1)
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