ARSHAD MIAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2891/2018

[2020] HKCFI 1902

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2891 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

(1)      Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 11 July 2018 be refused; and

(2)      Application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.  The applicant is the same applicant in another application HCAL 1495 of 2018 filed on 30 July 2018, which he applied to withdraw and an Order was made approving his application on 20 November 2018. He subsequently applied to restore his application. The Court approved his application and the merits of it are now assessed below.

2.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 11 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

3.  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.

4.  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

5.  The applicant is a Bangladeshi national. He came to Hong Kong illegally on 16 March 2008 and was arrested by police on 20 April 2008. He lodged his non-refoulement claim by written representation on 30 April 2008.

6.  He claimed that if refouled, he would be harmed or killed by members of the Bangladesh Nationalist Party (“BNP”) in his village and his creditors. He had injured a BNP member during a fight in 2006 and he had failed to repay the loan to his creditors. For details of his story, see paragraphs 8-17 of the Board’s Decision.

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 15 December 2016 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the past events showed that the level of risk that he might be subjected to if he returned to Bangladesh was low [13]; that state protection would be available to him [19] and internal relocation was an option open to him [24].

The Board’s Decision

9.  The applicant appealed to the Board against the Director’s Decision. He attended the hearing before the Board.

10.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision for the reasons as set out in paragraphs 32-43. Below is a summary of its findings:

(1)     he was not a truthful witness and he had manufactured his claims for non-refoulement protection in Hong Kong [34];

(2)     it did not accept that he was a member of the AL charged with the offence of attacking the BNP members [34];

(3)     it did not accept that he had borrowed money from money lenders [34];

(4)     the entirety of has claims had been fabricated [41];

(5)     the documents he produced to the Board were fraudulent [42]; and

(6)     it did not accept that he would be subjected to any real risk of harm from his creditors [43].

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 17 December 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, he did not set out any grounds in support of his application.

DISCUSSION

13.  The applicant’s application is late (Board’s Decision dated 11 July 2018 and Form 86 was filed on 17 December 2018). The Court has to consider the merits of his case in order to determine whether time should be extended for his application. See AW v. Director of Immigration and William Lam CACV 63 of 2015 §27.

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 10 above.

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 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 that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

18.  I therefore refuse to extend time for the applicant’s application for leave 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