SAKIL MOHAMMAD v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2886/2018

[2020] HKCFI 1701

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2886 of 2018

Application for Leave to Apply for Judicial Review

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

Following;

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 of the Decision dated 21 November 2018 of the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.  The applicant is a Bangladeshi national.  He came to Hong Kong illegally on 9 March 2016 and was arrested by police on the same day.  He lodged his non‑refoulement claim by a written representation dated 12 March 2016.

5.  He claimed that if refouled, he would be harmed or killed by his uncle and the members of the Awami League (“AL”) because of a land dispute and that he was a member of the Bangladesh Nationalist Party (“BNP”), a rival party to AL.  His uncle and other people of his uncle had assaulted him, trying to gain possession of the land he inherited from his father.  Also, he was attacked a number of times between 2013 and 2016 by members of AL.  His stories are contained in paragraph 6-11 of the Board’s Decision.

The Director’s Decision

6.  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”).

7.  By Notice of Decision dated 28 February 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that there were no substantial grounds for believing that there would be any substantial risk of being warmed or killed by his uncle if he returned to his country [14]; that state protection would be available to him [18] and internal relocation was an option open to him [22].

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision.  He attended the hearing before the Board. 

9.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision for the reasons as set out in paragraphs 23-39 of the Board’s Decision.  The Board concluded that no credence whatsoever could be attached to any of his claims and that none of his claims can be given any credence whatsoever.  In a nutshell, he had failed to establish any factual basis in support of his claim.  Below is a summary of the Board’s findings.

a.  The applicant’s answers to the Board’s questions were vague, inconsistent and unreliable.

b.  His evidence was inconsistent with his statement given to the immigration officer.

c.  He was not giving honest evidence to the Board.

d.  He was unable to give reasonable explanation to evidence which the Board required him to clarify.

e.  The documents, including the medical records he produced to the Board were unreliable.

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 17 December 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, he had not set out any grounds in support of his application.

DISCUSSION

12.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  See paragraph 9 above.

13.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. … 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.”

14.  It is quite clear that the Board had examined his evidence by reference to his statement given to the Director and his oral evidence at the hearing, giving him ample opportunity of clarifying the issues for the Board.

15.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

17.  I therefore refuse to grant leave for the applicant to apply for his intended 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