KHAN OLIUR RAHMAN v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1738/2018

[2020] HKCFI 1758

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1738 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 10 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended by replacing the descriptions therein with the Board as proposed respondent and replacing the Board with the Director of Immigration (“the Director”) as interested party.

The applicant

4.  The applicant is a Bangladeshi national. He came to Hong Kong on 18 August 2014 illegally.  He was arrested by police. On 19 August 2014, he lodged his non-refoulement claim.

5.  He claimed that if refouled, he would be harmed or killed by the members of an oppositional political party, the Awami League Party (“AL”).

6.  He was an active member of the Bangladesh National Party (“BNP”) and he was the chairman of a local party in around 2007.  In early 2013, some AL members approached him.  He was taken to a remote house where he was verbally and physically abused with hammers and wooden sticks.  His father paid ransom for his release.  He had to receive medication in a private clinic.  He reported the matter to police but obtained no assistance.  In around April 2013, whilst he was riding his motorcycle, he was attacked by several members of AL and was cut with a knife.  He moved to live in India for one year.  Then he returned to Bangladesh in 2014 for the election.  He realized that false charges of vandalism and murder were laid against him.  He then fled for Hong Kong.

The Director’s Decision

7.  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.risk of persecution by 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”).

8.  By Notice of Decision dated 27 January 2017 (“the Director’s Decision”), the Director refused his claim on all risks for the reason that his claim was not substantiated.  The Director found that there was no substantial ground for believing that there would be real risk of him being harmed or killed by the AL members upon his return to Bangladesh [13]; that state protection would be available to him [18] and internal relocation was an option open to him [33].

The Board’s Decision

9.  The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 20 June 2018.  The Adjudicator of the Board had raised questions with him.

10.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

11.  In its Decision, the Board considered the applicant’s evidence and for the reasons set out in paragraphs 24-40, it came to the following conclusion at §41:

“There appears to be no dispute that the appellant is a national of Bangladesh, but given the serious difficulties of various kinds set out above, and the appellant’s inability to provide any explanation for them, I conclude that none of his other claims can be given any credence whatsoever.”

Application for leave to apply for judicial review

12.  The applicant filed Form 86 on 24 August 2018 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, he stated that his case was not tested properly; that he needed time to obtain more documents and that he would face dangerous incident if he returned to Bangladesh.

DISCUSSION

14.  It is obvious that the Board had rejected all the facts in support of his application.  As such, he has no factual basis for his claim.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“ 13. … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.  The grounds that he has raised in support of this application are his opinions without any evidence or specifics in support of them.  The Board had made enquiry and given its reasons for its finding of the facts of his case.

17.  There is no evidence to show that the Board erred in the finding of the facts or the application of the laws to his case.

18.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

19.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

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