|
HCAL 2599/2019
[2025] HKCFI 1298
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 2599 OF 2019
_____________
BETWEEN
|
Dewan Mohammed Manik |
Applicant |
|
and |
|
|
Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
|
and |
|
|
Director of Immigration |
Putative Interested Party |
_____________
| Before: |
Deputy High Court Judge K.W. Lung in Court |
| Date of Hearing: |
10 March 2025 |
| Date of Judgment: |
22 April 2025 |
_______________
J U D G M E N T
_______________
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 4 September 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.
2. The applicant asked for a hearing. He appeared before the Court on 10 March 2025.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
The applicant
4. The applicant, aged 40, is a national of Bangladesh. On 1 March 2016, the applicant surrendered to the Immigration Department, admitting that he sneaked into Hong Kong on 28 February 2016. He lodged a non-refoulement claim for the reason that if refouled, he will be harmed or killed by his enemies because of his participation in the Bangladesh Nationalist Party (“BNP”) and his business dispute with Jafar.
5. According to the applicant, he was a supporter of the BNP. In 2008, he sustained injuries because of fights with the Awami League people. He did not receive medical treatment. Between September 2014 and March 2015, there were 4 attacks by the AL people and he had sustained injuries on his head and leg. He was hospitalized for 4 days and received 7-8 stitches. It took 2 to 3 months to recover in one of the attacks. He had moved to live in various places. When he lived in his relative’s house in Dhaka, he was attacked from behind. After he moved back to his parents’ home and attended his shop, he had a dispute with his neighbour, Jafar over the competition of the customers. He suspected Jafar had broken the shutter of the shop and took the money from the cash box. The shop was vandalized as well. He reported the matter to police, which did not take action. It was under those circumstances he left Bangladesh for Hong Kong.
6. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 10 January 2019 (“the Director’s Decision”).
The Director’s Decision
7. The Director considered the applicant’s claim in relation to the following risks:
(a) risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
(b) risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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 way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director did not accept that the harms he had suffered in Bangladesh are so serious as to meet the requirements under BOR 3 risk; that the AL people and Jafar would try to locate him all over Bangladesh and that state protection will be available if he returns to Bangladesh; and that internal relocation will be viable. [12]-[29]
The Board’s Decision
9. The applicant appealed the Director’s Decision to the Board. On 30 May 2019, the Board conducted an oral hearing for his appeal.
10. Having considered the evidence [16]-[48], the Board found that the applicant was not a truthful witness and it did not accept his factual evidence in support of his claim, that is to say, his story as set out in paragraph 6 of the Director’s Decision. Therefore, it did not accept that he will face any real chance of harm of any kind for any of the reasons he has claimed. [49]
11. For those reasons, the Board dismissed his appeal and confirmed the Director’s Decision.
Application for leave to apply for judicial review of the Board’s Decision
12. The applicant has filed Form 86 dated 6 September 2019 for leave to apply for judicial review of the Board’s Decision.
13. In his affirmation in support of his application and in a statement attached to Form 86, the applicant has, insofar as the Board is concerned, raised the grounds below.
(1) The Board had unlawfully fettered its discretion by refusing his appeal.
(2) The adjudicator acted in a procedurally unfair manner: the hearing bundle was sent to him shortly before the hearing and he did not have the service of translation or interpretation; he was confused at the hearing, but he had answered all the questions from the Board; the Board did not inform him of the Board’s Decision by phone despite his request; it had relied on source of information official unrecognized or outdated authorities, resulting in its speculation that it would be safe for him to return to his country; and the adjudicator had not been to his country to understand the situation before making her decisions.
(3) The Board’s Decision if unreasonable or irrational in the public law sense or as a result of procedural errors or unfairness.
(4) The Board failed to meet the greater care and duty owed to him as a self-represented claimant.
DISCUSSION
14. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant did not say that the Board’s Decision is wrong. He asked for more time to produce more documents.
16. 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.”
17. The grounds under paragraph 13 do not assist the applicant in this application because most of them are his bare assertions or opinions without any evidence in support. They are not valid to challenge the Board’s Decision[1]. As to ground (2), he did not make any complaint to the Board for insufficient time to prepare for his appeal, and lack of interpretation service is not a valid ground in support of his application[2]. The Board is not obliged under the law to notify him of the Board’s Decision by phone. It is not necessary for the adjudicator to go to his country for the situation there because it could rely on the county of origin information, which it had done in the assessment of the case.
18. The applicant has not shown that there is any valid ground to challenge the Board’s Decision.
19. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
DISPOSITION
20. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
| |
(K.W. Lung) |
| |
Deputy High Court Judge |
The applicant appeared in person.
[1] The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:
“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”
[2] The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, held:
“16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”
|