ISLAM MAJHARUL v. TORTURE CLAIMS APPEAL BAORD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL1142/2018

[2019] HKCFI 1983

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1142 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

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 to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”), with the Director of Immigration (“the Director”) as interested party.

2.  The applicant requested a hearing.  The hearing was fixed at 10:00 am on 12 December 2018.  However, the applicant was absent on that day.

3.  By an Order dated 12 December 2018, this Court dismissed his application for want of prosecution.

4.  The applicant filed a summons and affirmation dated 24 December 2018 to seek leave to appeal against the said Order to the Court of Appeal.

5.  On 27 December, 2018, this Court gave directions that a hearing be fixed at 10:00 am on 8 February 2019 and the applicant should file an affirmation to state his reasons for his absence on 12 December 2018 within 7 days from the date of the directions.

6.  The applicant did not file any affirmation as directed. He appeared before me on 8 February 2019 and he was given the final chance to give his explanation for his absence.

7.  He explained on oath that he did not receive the Notice of hearing. He is persistent to proceed with his application. His letter box was open all the time. He cannot explain why the Notice of hearing was not found in the letter box. There is simply no reason for him to abandon his application.

8.  I am satisfied with his explanation for his absence on 12 December 2018.

9.  Under Order 32, rule 6 of the RHC, this Court has the jurisdiction to set aside an order made ex parte.  Pursuant to Order 1A, rule 1 and Order 1B, rule 1(2)(l) of the Rules of the High Court, I shall now treat the applicant’s application as an application to set aside the order which I made on 12 December 2018 dismissing his application.  The said order is now set aside.

10.  I shall now consider the applicant’s application for leave for judicial review of the Board’s Decision.

The applicant

11.  The applicant is a Bangladeshi national. He came to Hong Kong through China illegally on 16 October 2015. He was arrested by police on the same day. On 21 October 2015, he lodged his non-refoulement claim. He was released on recognizance on 17 November 2015. He claimed that if he was repatriated to Bangladesh, he would be harmed or killed by the members of the Awami League (“AL”) in Natherpetuya Union, Bangladesh due to his refusal to quit Bangladesh Nationalist Party (“BNP”) to join them.

12.  In his statements to the Director and the Board, he stated that he was an active member of BNP, holding an office of the Publicity Secretary in his local area. He had quite some influence on voting for the elections locally. That was why the head of the local AL invited him to quit BNP and join AL. He refused. In 2014, he assisted the local election and won for the BNP candidate. Because of this, the AL people attacked him and other BNP people at the victory rally. He also assisted BNP in the sub-district election in 2014. Again, he and other BNP members were attacked by the AL people. In late 2014, he was assaulted by 5 to 6 AL people and he sustained injury, for which he had to stay in the hospital for one night. He was concerned for his personal safety. He also learned that the police had framed up a case against him. In 2015, he left Bangladesh for China and sneaked to Hong Kong.

The Director’s Decision

13.  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”)

14.  By Notice of Decision dated 8 August 2017 (“the Director’s Decision”), the Director refused his application for the reason that his claim was not substantiated.

The Board’s Decision

15.  The applicant appealed to the Board and attended a hearing before the Adjudicator on 26 April 2018.

16.  By Decision dated 4 June 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

17.  Having considered the applicant’s evidence, the Board rejected all the accounts of fact as stated by the applicant in support of his claim. In the Board’s Decision, it stated:

“57.  The Board does not accept the credibility of the Appellant’s account. It does not accept that he was ever a member of the BNP, let alone the Publicity Secretary of that organization. It does not accept that he was ever attacked by members of the Awami League … …

58.  The Board has considered the Appellant’s claims both individually and cumulatively, but in light of the findings above, the Board does not consider that the Appellant is at a real risk of any harm occurring should he return to Bangladesh. Based on the evidence as a whole, the Board finds for the reasons that follow that the Appellant’s case for non-refoulement has not been made out.”

Application for leave to apply for judicial review

18.  By Form 86 dated 20 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 Board’s Decision.

19.  In his affirmation in support of his application dated 20 June 2018, he relied upon the following grounds:

(1)   the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare for his case;

(2)   there was no interpretation for the hearing bundle and he was confused at the appeal hearing;

(3)   the Board had relied upon hearsay and outdated materials in relation to the Country of Origin Information.

DISCUSSION

The Board’s Decision

20.  The applicant appeared before me. He considered that he had had a fair hearing before the Board. He understood the hearing bundle and the Board’s Decision as explained by his friend. He was simply not happy with the decision that he had to return to Bangladesh. 

21.  It is clear that the main reason for the Board to turn down his appeal is that it did not believe the applicant’s stories. This is the fact that the Board is entitled to find after examination of the evidence before it. The applicant therefore has no factual basis in support of his claim.

22.  The grounds above are irrelevant to the reasons that the Board refused his appeal.

23.  Ground (1) and (2) fail as they are inconsistent with what the applicant said before this court.

24.  Ground (3) fails as it is the applicant’s opinion without any evidence in support of them.

25.  The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

26.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for 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