HCAL 1375/2018
[2021] HKCFI 3911
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1375 of 2018
BETWEEN
Shahin,
Applicant
and
Torture Claims Appeal Board/
Putative Respondent
and
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. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court (“RHC ”), Form 86 is amended to the effect that the date of the Director’s Decision is 6 April 2018 (the “Director’s Decision ”) instead of 1 February 2018.
2. The Director’s Decision rejected the applicant’s subsequent claim. The applicant made his subsequent claim under the following circumstances.
3. The applicant made a torture claim under Article 3 of the Convention on 20 August 2007. He withdrew his application on 9 July 2010, stating that his problem in Bangladesh had been solved. His application for withdrawal was approved. On 19 January 2011, he applied to re-open his claim. His application was approved. On 29 June 2011, he withdrew his claim again. He was deported to Bangladesh on 28 November 2011.
4. On 26 July 2017, he was arrested and convicted of some immigration offences. On 26 February 2018, the Director received the applicant’s written submission for non-refoulement, which the Director treated as his subsequent claim under the Unified Screening Mechanism as he had made his previous claim before. By the Director’s Decision, the Director, after considering the applicant’s evidence and materials, rejected his subsequent claim.
5. Under section 37ZR[1] of the Immigration Ordinance, Cap. 115 (the “Ordinance ”), the Board has no power to hear any appeal from the decision of the Director on a subsequent claim. Therefore, the applicant took out this application for leave to apply for judicial review of the Director’s Decision.
6. The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the RHC, the matter is dealt with on paper.
The applicant
7. The applicant is a citizen of Bangladesh. In his previous claim, he claimed that he could not return to his own country because he refused to join the political party. He said that he had a fight with his friends who were belonging to the Bangladesh Nationalist Party (“BNP ”).
8. His claim had not been assessed because he withdrew his claim and was repatriated.
Application for subsequent claim
9. The applicant relied upon the following facts in support of his subsequent claim, the details of which can be found in paragraph 10 of the Director’s Decision:
a. after he had returned to Bangladesh in 2011, he joined the BNP;
b. members of the BNP set up a money deposit company called RDP and he was responsible for its business;
c. his business partner took the money deposited and ran away;
d. he was chased by the money depositors;
e. he had hidden himself in Faridpur for about 2 months; Dinaipur for 1 month and Dhaka for about 8 months;
f. he was attacked by some people, whom he suspected to be the money depositors and he lost consciousness;
g. he left his country for Hong Kong in 2017;
h. his family members told him that the money-depositors filed complaint with the police for their money.
10. The Director considered the issues and applied the law on his subsequent claim. Under section 37 ZO (1) & (2) of the Ordinance, it provides:
(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.
(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—
(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and
(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.
11. Having considered the evidence, the immigration officer concluded that there had been a change of circumstances since his withdrawal of his previous claim. However, such change of circumstances, when taken together with the material previously submitted in support of his previous claim, would not give his subsequent claim any realistic prospect of success [13] for the following reasons:
a. his previous claim was on the reason of him refusing to join another political party whereas on this occasion, it was a money dispute that he was alleged hurt by the money depositors;
b. there was no evidence that showed that the money depositors intended to torture or kill him, which is reinforced by them filing a complaint with the police, intending to resolve their dispute through legal process [15.3];
c. there was no evidence to show that the Bangladeshi government was involved in the incidents and state protection should be available to him [15.4];
d. relocation is an option open to him as evidenced by his hiding in various places without being harmed by his enemies [15.5].
12. Eventually, the Director dismissed his subsequent claim.
Application for leave to apply for judicial review
13. The applicant filed Form 86 for leave to apply for judicial review of the Director’s Decision.
14. In his affirmation in support of his application, he referred to the Torture Claims Appeal Board’s decision. In fact, the decision was made by the Director. I shall treat his complaint as against the Director’s Decision. He stated that Director had not considered that he is not an educated person and he did not have a lawyer to represent him; that the Director decided his case on assumption instead of evidence, which he could not provide because he was detained in the detention centre.
DISCUSSION
15. The role of this Court is supervisory, meaning that it ensures that the Director complied with the public law requirements in coming to his Decision. The Court will not usurp the fact finding power vested in the Director. 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).
16. The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.
17. 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.”
18. It is quite obvious that the immigration officer did not challenge his evidence in support of his subsequent claim. He accepted his factual evidence and applied the law to the facts. He concluded that the change of circumstances will not support his subsequent claim. He had given the reasons for his findings in paragraph 10 above.
19. The applicant has submitted no valid ground to assist his application. The Director had considered his evidence and applied the appropriate law to his case. Since the immigration officer had accepted his evidence, there is no point to argue that he was not an educated person and that he had no legal representation. It is simply because his case is not covered by the statutory law and the Convention that the Director must reject his subsequent claim.
20. The Court does not find any error of law or procedural unfairness in the Director’s Decision. The Director’s findings are not in any respect open to challenge as Wednesbury unreasonable or irrational.
21. There is no evidence to show that the applicant has any realistic prospect of success in his intended judicial review.
CONCLUSION
22. I therefore refuse to grant leave for the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.
Dated the 31st day of December 2021
(Chasel MAN)
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 :
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);
Sent to the ApplicantShahin, alias Shahin Sekh, alias Khan Sujan, alias Washim, alias Shak Shahin
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 31/12/2021
Form CALL-1
[1] 37ZR. Appeal
A person aggrieved by a decision of an immigration officer may appeal to the Appeal Board if the decision is made in respect of the person under—
(a) section 37ZE(4) or 37ZG(5) (decision not to re-open a torture claim);
(b) section 37ZI(1)(b) (decision rejecting a torture claim); or
(c) section 37ZL(1) (revocation decision made by an immigration officer).