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HCAL 2108/2018
[2021] HKCFI 3554
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2108 of 2018
BETWEEN
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Jamal Hossin alias Jamal Hossain |
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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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 K.W. Lung:
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 20 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).
2. He is now being detained by the Immigration Department. The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the matter is dealt with on paper.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.
The applicant
4. The applicant is a citizen of Bangladesh. He entered Hong Kong illegally on 15 February 2015 and was arrested on the same date. He lodged a non-refoulement claim on 26 February 2015.
5. The applicant claimed that if refouled, he would be harmed or killed by members of Awami League (“AL”) as he refused to join and donate to them. According to the applicant, he was a supporter of a political group known as Shibir. In early 2009, AL won the election and they started to harass and attack the applicant. He did not report the assault to the police as AL was in power. In April 2014, the members of AL demanded donations from the applicant but he refused. Thereafter, he was again attacked by the AL members. Out of fear, he fled to Hong Kong for protection. Details of his story could be found at paragraph 6 of the Director’s Decision as described below and paragraphs 26-36 of the Board’s Decision.
The Director’s Decision
6. The Director considered his application in relation to the following risks:
a. risk of torture under Part VII C 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”).
7. By Notice of Decision dated 15 January 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there was no substantial ground for believing that there would be any real and substantial risk of him being harmed or killed upon his return to the Bangladesh [12]-[14]; that reasonable state protection was available to him [15]-[20] and that internal relocation was an option open to him [21]-[22].
The Board’s Decision
8. The applicant appealed against the Director’s Decision to the Board and attended the scheduled oral hearing on 3 September 2018 with the assistance of an interpreter.
9. Before the Board, the applicant complained that his physical and mental well-beings were unwell. Having considered the applicant’s alleged problems, the Board was not satisfied that the alleged problem could exonerate the deficiencies in the applicant’s evidence [41]-[44]. The Board cast doubt on the applicant’s alleged membership and subsequent roles in Shibir [45]-[55]. It also found inconsistencies in other material aspects of his claim, such as his descriptions of events when the AL members demanded his donations and his whereabouts [56]-[61]. Taking these into account, the Board refused to accept that the applicant had established a fear of being harmed or killed by AL members [63]-[66]. As a result, the Board rejected his claim on all applicable grounds and dismissed his appeal [67]-[71].
Application for leave to apply for judicial review
10. The applicant filed Form 86 on 3 October 2018 for leave to apply for judicial review of the Board’s Decision.
11. In his affirmation in support of his application, he said that he is not educated; that the Board decided his case on assumption and without considering the evidence, making adverse inference to his claim.
DISCUSSION
12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).
13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
14. In Re Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13(1) ……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.”
15. He has submitted no valid ground to assist his application. His complaints are his opinions or comments without any evidence in support of them.
16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
17. There is no evidence to show that the applicant has any realistic prospect of success in his intended judicial review.
CONCLUSION
18. I therefore refuse to grant leave for the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.
Dated the 29th day of November 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 the Applicant’s 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 29/11/2021
Jamal Hossin alias Jamal Hossain
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 29/11/2021
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10050/18/1/323/B1138
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 3278/17 (Formerly RBCZ 10675/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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