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HCAL1416/2018
[2019] HKCFI 546
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1416 of 2018
BETWEEN
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Bappy Shahajada Murad |
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 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”) with the Director of Immigration (“the Director”) as the interested party.
The applicant
2. The applicant is a Bangladeshi national. On 20 March 2014, he was arrested by police for entering Hong Kong illegally. On 21 March 2014, he was referred to the Immigration Department for investigation. On 22 March 2014, he lodged his non-refoulement claim.
3. He claimed that if he were to be returned to Bangladesh, he would be harmed or killed by members of Awami League.
4. In his statements given to the Director and the Board, he said that he was a member of the Bangladeshi Nationalist Party (“BNP”). He was approached by members of the rival party, Awami League, Munna and Prince sometime in 2008. They told him to leave BNP. He refused. In 2009, he and his friends were attacked by Mumma and Prince and their friends on three separate occasions and at different places as he was trying to move to other places to avoid them. In 2010, he was again attacked by Munna and his friends. He fled to Dubai to work for two and a half years. He then returned to Bangladesh. He met Munna again and was attacked by him. He learned that Hong Kong would provide protection for refugees. He spent HKD $12,000 to get to Hong Kong.
The Director’s Decision
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 22 September 2017 (“the Director’s Decision”), 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. On 28 May 2018 he attended the hearing before the Adjudicator.
8. Having considered the applicant’s evidence, the Board, by Decision dated 21 June 2018 (“the Board’s Decision”), refused his appeal and confirmed the Director’s Decision.
9. The applicant elected not to make further submission before the Adjudicator. See paragraph 20 of the Board’s Decision.
10. For the reasons set out in paragraph 21 of the Board’s Decision, the Adjudicator had doubts whether the applicant was telling him the truth. [vi] The Adjudicator found that there was no evidence that the state was involved in this case. [xii]
11. The Board also found that state protection was available for the applicant. [28]
Application for leave for judicial review
12. By Form 86 dated 18 July 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Board’s Decision, with the Director as the interested party.
13. In his affirmation in support of his application dated 18 July 2018, the applicant set out the reasons in support of his application below:
(1) the Hearing Bundle was only given to him shortly before the appeal hearing and he did not have sufficient time to prepare for it;
(2) the Hearing Bundle was in English without translation for him;
(3) he was confused at the appeal hearing; and
(4) the Board had relied upon outdated or hearsay Country of Origin Information (“COI”) for his case.
DISCUSSION
14. The applicant had appeared before me. He confirmed that he could read English himself and it was unnecessary to have translation of the Hearing Bundle for him. He had read the Hearing Bundle before the appeal hearing. He had had no difficulty with the Adjudicator. Also, he had no complaint against the Adjudicator except that he was unhappy with the Adjudicator’s decision.
15. He further said that the affirmation was prepared by his friend whom he trusted. He did not read through it before he signed it.
16. Grounds (1) to (3) are obviously inconsistent with what he said before this Court. They fail.
17. As to the allegation that the Board had relied on the source of news which was outdated or simply hearsay, under section 18 of Schedule 1A(1) of the Ordinance, the Board may consider the same evidence that was before the Immigration officer[1]. The Director is entitled to consider any relevant materials for the investigation under section 37ZB of the Immigration Ordinance (“the Ordinance”)[2]. The Director had considered the relevant reports in relation to the Country of Origin Information. They are recognized information for assessment of the risks as raised by the applicant in the legal proceedings. The Court of Final Appeal had also relied upon The Handbook (United Nations High Commission for Refugees) in its Judgment in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187[3]. The applicant has not set out any reason why he considers that the information is unreliable. Ground (4) fails too.
18. I find that the applicant is unable to show that his proposed judicial review has reasonable chance of success
CONCLUSION
19. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the judicial review. Accordingly, I dismiss his application.
Dated the 8th day of March 2019
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(Alan Ngan)
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
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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 8/3/2019
Bappy Shahajada Murad
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 8/3/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8731/17/10/61/B1003
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3132/16 (formerly RBCZ 3000167/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] In an appeal under section 37ZR, the Appeal Board has the power to review the merits of the case, and accordingly it may consider—
(a) the same evidence that was before an immigration officer;
[2] After a completed torture claim form is returned by a claimant, an immigration officer—
(a) may require the claimant to provide the immigration officer with any information or documentary evidence related to the claimant’s torture claim that the immigration officer specifies;
[3] See §21
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