HCAL1560/2018
[2019] HKCFI 551
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1560 of 2018
BETWEEN
MD Wahid
Applicant
and
Torture Claims Appeal Board/
1st Putative Respondent
Director of Immigation
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 decision of the Director of Immigration (“the Director”).
The applicant
2. The applicant is a Bangladeshi national. He had stayed in Hong Kong illegally in 2005. He had raised torture claim in 2007 and was rejected whereupon he was removed and refouled to Bangladesh. He entered Hong Kong again through China in 2013 and was arrested by police. On 25 June 2013, he was referred to the Immigration Department for investigation. He had made another non-refoulement claim.
3. He claimed that if he were to be returned to Bangladesh, he would be harmed or killed by his ex-business partners and a gang of Awami League associated robbers.
4. In his statements given to the Director, he said that in 2005 he had witnessed a case of robbery at the shop where he worked. He was identified by the robbers, who met him on the street. They attacked him without saying anything, as a result of which, he was admitted in hospital for two weeks. Later, he received death threats from the robbers, demanding him to leave the country. He then came to Hong Kong.
The Director’s Decisions
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 20 October 2015 and Notice of Further Decision dated 8 December 2016 (collectively called “the Director’s Decisions”), 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. He attended a hearing before the Adjudicator on 16 March 2017.
8. Having considered his evidence, the Board, by Decision dated 16 July 2018 (“the Board’s Decision”) refused his appeal and confirmed the Director’s Decisions.
9. The Adjudicator had made enquiries with the applicant at the hearing and he had also compared the applicant’s evidence with the information that he had supplied to the Director in the Questionnaire and in the Non-refoulement Claim Form. He found that the applicant’s evidence was contradictory and untruthful [48].
10. The Adjudicator had also stepped back and said that even if the applicant’s evidence were accepted, he would still dismiss his appeal for the reasons that the applicant’s perceived risk was localized and the Awami League people could not locate him if he relocated himself [52]; state protection was available to the applicant [56]; the Country of Origin Information (“COI”) showed that the state was having reforms with positive results [58] and finally internal relocation was an option for the applicant [61].
Application for leave for judicial review
11. By Form 86 dated 7 August 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decisions and the Board’s Decision.
12. In his affirmation in support of his application dated 7 August 2018, the applicant set out the reasons in support of his application, which I shall summarize below:
(1) the Director and the Adjudicator had committed procedural impropriety in the process because they did not take heed of that the state government should reform to give effective redress of his problem; failing to make independent inquiries to the COI themselves and they cherry-picked the information to his detriment and they failed to consider the issue of extended state acquiescence; and
(2) the Decisions of the Director and the Board were unreasonable because they did not appreciate the danger that he would face if refouled to Bangladesh.
DISCUSSION
The Director’s Decisions
13. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decisions 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 Decisions and this Board has wider power than this Court to make investigations in the matter. The Board had considered 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 Decisions.
The Board’s Decision
16. The applicant’s claim is facts sensitive. If he fails to establish the facts before the Board, he would have no factual basis for his claim. The Adjudicator had found that his evidence was untrue. See paragraph 48 of the Board’s Decision.
17. Facts are to be found by the Director or the Board. The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at:
“13. Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….”
“14. Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.”
18. The applicant had appeared before me and he confirmed that he had no complaint against the Adjudicator and considered that he had had a fair hearing before the Adjudicator.
19. Ground (1) is either his opinion without any evidence to support or it was within the discretion of the Adjudicator as to weighing of the evidence to come to a conclusion in relation to the facts of the matter. This ground fails.
20. Ground (2) fails as it is only his opinion. The facts had been found by the Adjudicator.
CONCLUSION
21. 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 8th day of March 2019
(Alan Ngan)
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 the Applicant’s solicitors must:
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)).
Sent to the Applicant on 8/3/2019MD Wahid
Applicant’s ref. no:
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 8/3/2019
Torture Claims Appeal Board/ Non-refoulement Claims Petition Office st Putative Respondent’s ref. no.:
Director of Immigation nd Putative Respondent’s ref. no.:
Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)
Form CALL-1