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HCAL1049/2018
[2019] HKCFI 136
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1049 of 2018
BETWEEN
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Shipon MD |
Applicant |
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The Director of Immigration |
1st Putative Respondent |
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The Adjudicator of the
Non-refoulement Claims Petition Office |
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 of the respective decisions of the Director of Immigration (“the Director”) and the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).
The applicant
2. The applicant is a Bangladeshi national. He entered Hong Kong unlawfully on 8 February 2014, the same day he was arrested by police. He made a non-refoulement claim on 11 February 2014.
The grounds of non-refoulement protection
3. In support of his application, the applicant said that he had been involved in conflicts with his opposition political party, the Awami League. If he was to return to Bangladesh, he would be arrested for a frame-up case of smuggling weapons into the country. He was an active member of the Bangladesh Nationalist Party (“BNP”).
4. In the statements he had given to the Director and the Adjudicator, he said that he was General Secretary of the BNP of his locality. In 2013, he and other four members were targeted by the AL members and the police. The police tried to frame up a weapon smuggling case against him. He escaped from the police and went to Gazipur and Tongi where he stayed with his uncle and nothing untoward happened. He moved back and then had gone to Nepal for sightseeing. In November 2013, he came across the AL members on the street and was beaten up by them. As a result, he was injured quite seriously. He was hospitalized for 3 days and had to received medication. He moved to Tongi to live with uncle again. His family was then targeted. His father was framed up with criminal charges and was imprisoned. He then fled to Hong Kong.
The Director’s Decision and Further Decision
5. The applicant’s application was considered by the Director by reference to the following risks:
a. the torture risk under Part VIIC of the Immigration Ordinance (“the Ordinance”);
b. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of the Hong Bill of Rights (“BOR 3”) (Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383) (“BOR 3 risk”); and
c. risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Convention”) (“persecution risk”).
6. By Notice of Decision dated 18 January 2016 (“the Director’s Decision”), the Director rejected the applicant’s non-refoulement claim on the above risks.
7. By another letter dated 25 May 2017, the Director requested the applicant to submit additional facts in support of his absolute and non-derogable rights under the Hong Kong Bill of Rights, including right to life under Article 2 (“BOR 2 risk”). The applicant did not respond to this letter.
8. By another Notice of Decision (“the Director’s Further Decision”), the Director rejected the applicant’s application on BOR2 risk as well.
Appeal to the Board
9. The applicant appealed to the Board and attended a hearing on 8 December 2016.
10. At the hearing, the applicant elected not to give evidence. He relied upon the materials in the hearing bundle and he confirmed that they were true.[1]
11. The Adjudicator had made inquiries into the applicant’s case. Having considered the evidence before him, he came to the conclusion that the applicant had failed to establish that he would be subjected to any of the risks above if he were refouled back to Bangladesh. He considered that it was not necessary for him to consider the issue of relocation for the applicant. [2]
12. After making its Decision above, the Board then received the Director’s Further Decision in relation to BOR2 risk. The Adjudicator considered that it was not necessary to hold another hearing for the applicant. He considered the Director’s Further Decision and by another Decision dated 24 April 2018, he refused the applicant’s appeal against the Director’s Further Decision.
Application for leave for judicial review
13. By Form 86 dated 8 June 2018 under Order 53 rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the decisions of the Director and the Board respectively.
14. The applicant has filed his affirmation in support of his application. He relied upon the grounds as set out in an enclosure annexed with Form 86:
(1) the Director failed to maintain high standard of fairness;
(2) the Director did not appreciate state acquiescence and the collusion between the police and the political circles;
(3) the Director had selected the Country of Origin Information that suited his pre-conceived conclusion;
(4) the Adjudicator failed to make sufficient enquiry before making the determination;
(5) it was wrong for the Adjudicator to ask for evidence from the applicant because he was being detained in the centre; and
(6) the Adjudicator did not give the applicant sufficient chance to arrange relevant evidence to support his case.
DISCUSSION
The Director’s Decision and Further Decision (“the Director’s Decisions”)
15. 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 was created by the legislature, with wider power than this Court to make investigations in the matter. The Board had heard his appeal and made its Decisions.
16. Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.
17. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decisions.
The Board’s Decision and Further Decision (“the Board’s Decisions”)
18. The applicant appeared before me in the hearing. He confirmed that he was legally represented and had interpreters at the screening. He had an interpreter for the appeal hearing before the Board. He understood all the questions put to him by the Immigration officer and the Adjudicator and his answers to the questions are all true and correct. Furthermore, he said that he had no complaint against the Immigration officer or the Adjudicator of the Board.
19. Grounds (1), (2), (4) are the applicant’s opinion, not supported by any evidence. They fail.
20. Ground (3) is a matter of fact to be found by the Adjudicator. This ground cannot sustain.
21. The Court of Appeal had 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.”
22. At §14 of the same judgment, the Court of Appeal further said: “Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.”
23. As to ground (5), the Adjudicator was entitled to ask him to adduce evidence to prove his case as the burden is on him. If he had any difficulty, he should tell the Adjudicator for his determination. This ground fails.
24. As to ground (6), the applicant was unable to identify what evidence he would like to arrange for his case and how the Adjudicator had not given him the chance to make the arrangement. He had no complaint against the Adjudicator. This ground fails too.
25. I find that the applicant was unable to show that he had reasonable chance of success in his judicial review.
CONCLUSION
26. I find that the applicant has failed to show that his application for judicial review has any prospect of success. I refuse to grant leave for his judicial review. Accordingly, I dismiss his application.
Dated the 23rd day of January 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 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 23/1/2019
Shipon MD
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 23/1/2019
The Director of Immigration
1st Putative Respondent’s ref. no.:
QA T/C 1912/15 & RBCZ 9002009/17 (formerly RBCZ 1412/14)
The Adjudicator of the Non-refoulement Claims Petition Office
2nd Putative Respondent’s ref. no.:
USM 3043/16/2/9/B402
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] See §19 of the Board’s Decision
[2] See §87 ibid
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