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HCAL 2441/2018
[2020] HKCFI 246
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2441 of 2018
BETWEEN
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Ohid Mohammad |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and
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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. This is the applicant’s application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as interested party.
The applicant
2. The applicant is a Bangladeshi national. He arrived in Hong Kong illegally on 26 January 2016. He was arrested by the police on the same day. On 28 January 2016, he was transferred to the Immigration Department for further investigation. He raised a non-refoulement claim on 30 January 2016.
3. He claimed that if refouled, he would be harmed or even killed by persons from the Awami League (“AL”) because he was a supporter of the Bangladesh National Party (“BNP”) and these two parties had a dispute over the division of shares of harvest from a state-owned fish farm in Tongibari where he and his family resided.
4. The disputes started since 2010. On one occasion in 2015, there were over 100 AL people came to the fish farm and attacked them there. He was able to escaped unharmed. But his uncle and brother were injured. He then moved to live in his paternal uncle’s home in Gazipur for 6 to 7 months undisturbed. However, his family told him that the AL people had gone to his home and vandalized it. He moved his family to Gazipur as well. He did not report these matters to police because the AL was in power. He carried on his tyre business in Gazipur. However, he was scared that he might be found by the AL people and he came to Hong Kong.
The Director’s Decision
5. 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 under RC”).
6. By Notice of Decision dated 22 March 2018 (“the Director’s Decision”), the Director rejected his application for the reason that his claim was not substantiated.
The Board’s Decision
7. The applicant appealed to the Board and he attended a hearing before the Adjudicator on 30 August 2018.
8. By Decision dated 22 October 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.
9. The Board considered the applicant’s case. It held the facts below.
a. At the hearing the application was evasive in some of the answers [16].
b. There was no reason that the AL people would be still looking for him [98].
c. He was safe in Gazipur where he lived for 7 months [99]
d. The government was not involved as he was able to obtain his passport and was able to leave and return to Bangladesh 4 times without any difficulty [101].
e. The applicant would not be facing a high risk of being subjected to harm if he returned to Bangladesh [102].
f. There was no evidence that the Bangladeshi government was involved in the dispute and state protection should be available to him [128 & 129].
g. Internal relocation was an option open to him [136].
h. There was no evidence in support of the fact that he would be subjected to the risks above [151, 158, 163, 178 & 184].
Application for leave to apply for judicial review
10. In his Form 86 under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Board’s Decision.
11. In his affirmation in support of his application, the applicant relied upon the grounds below.
1. The hearing bundle was in English and he did not have language assistance.
2. He did not have sufficient time to prepare for his appeal.
3. He was confused at the hearing.
4. The Board relied upon materials which are not officially recognized, hearsay or outdated.
DISCUSSION
The Board’s Decision
12. The applicant appeared before me. He confirmed that he was able to speak freely and tell his stories before the Immigration officer and the Adjudicator. He considered that he had had a fair hearing before the Board.
13. The Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 §14 held that the primary decision makers are the Director and the Board and 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.
14. The Board did not reject his facts completely. It had considered the relevant facts. It applied the relevant statutory provisions and the Convention to the facts and came to its conclusion.
15. Lack of language assistance does not constitute a ground for his application as held by the Court of Appeal in Re Magar Surendra [2019] HKCA 667, 13 June 2019. At paragraph 19, it said:
“… …The inability to understand the hearing bundle before the board as a result of lack of language or other assistance, even if true, is irrelevant.”
16. The applicant was unable to identify the materials he complained. It is therefore only his bare assertion.
17. All the above grounds fail.
18. The applicant fails to show that he has a reasonable prospect of success in his proposed judicial review.
CONCLUSION
19. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.
Dated the 23rd day of January 2020
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(Mike Mak) |
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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:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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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);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 23/1/2020
Ohid Mohammad
Applicant’s ref. no:
Nil. |
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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 23/1/2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11029/18/4/39/B1198
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 239/18 (formerly RBCZ 10687/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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