RASEL SHAIKH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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

Following;

1.  Form 86 be amended, naming only the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the Putative Respondent.

2.  The application for leave to apply for judicial review out of time be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 28 January 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision dated 15 August 2018.  That was the decision of the Director of Immigration (the “DOI”), which was subsequently affirmed by the Torture Claims Appeal Board (the “TCAB”) in its decision dated 18 September 2020 (the “TCAB Decision”).  I regard the present application as a challenge against the TCAB Decision instead. 

2.  It is noteworthy that the Applicant had previously lodged a torture claim which was dismissed in 2013 (appeal also dismissed in 2013).  The TCAB Decision was therefore not concerned with torture risk.

3.  I amend the Form 86 on my own motion to name only the TCAB as the putative respondent.

4.  The Applicant requested for a hearing of this application and he attended the same.  When asked if he had anything to add he confirmed that he had not. 

Background

5.  The Applicant is a national of Bangladesh.  He seeks non-refoulement protection on the basis that he would be harmed or killed by members of the Bangladesh National Party (“BNP”).  The Applicant was originally a member of BNP and was chosen to occupy an official role in 2004.  He started to dislike some of the actions of BNP and he left in 2006.  He joined a rival political party instead.  BNP then began to retaliate and false accusations were made against him, leading to arrests and assaults against the Applicant.  Death threats were also made.  He also supported another party named Jamaat-e-Islami (although he was not an official member) and the government including the local police were holding a strong hand against this party.  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1].  I shall therefore not repeat them.

Discussion

6.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

7.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  A finding of fact is exclusively within the realm of the TCAB, and this 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 TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

8.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

9.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86 nor in his affirmation in support.

10.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [1-36] and found that on the basis of the same, applying also the correct legal principles in respect of all the remaining applicable grounds (i.e. excluding torture risk) [57-58, 61-62, 65] and properly considering Country of Origin information [37-38, 50-53], the Applicant’s allegations were insufficient to make out any of the applicable grounds [59-60, 63-64, 66-67]. In particular, the TCAB found the Applicant’s evidence to be incredible and unrealistic [39-42, 46], and accordingly there was no factual or evidential basis to support the Applicant’s claims [48].  There were conclusions that the TCAB was fully entitled to come to.

11.  The TCAB also concluded that state protection and internal relocation were available on the evidence [45, 54-55, 63].  The TCAB further noted that BNP was no longer the ruling party since 2006 so it was no longer the political force that justified the Applicant’s fear [37-39].

12.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.  The Applicant’s intended challenge to the TCAB Decision is therefore not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed.  I further note that the application was brought out of time, given that Order 53 rule 4(1) requires the leave application to be taken out within 3 months after the TCAB Decision was made.  Since I have held that the application is without merit, I also refuse to grant an extension of time (there was in any case no explanation for the delay).

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