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HCAL 3009/2018
[2020] HKCFI 1885
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3009 of 2018
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Hossain Mohammad Lokman |
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 of the Decision dated 3 December 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 by replacing the Security Bureau with the Board and to replace the Board with the Director of Immigration (the “Director”) as interested party.
The applicant
4. The applicant is a Bangladeshi national. He came to Hong Kong illegally on 21 November 2012. He applied for non-refoulement protection on 24 November 2012.
5. He claimed that if refouled, he would be harmed or killed by the persons called Latif and Momin, who were members of the Bangladeshi Awami League. He had been attacked and kidnapped by them. See paragraph 6 of the Board’s Decision for details.
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 22 September 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there was no substantial ground to believe that there would be any real risk as he alleged if he returned to Bangladesh [11]; that state protection would be available to him [19] and internal relocation was an option open to him [20].
The Board’s Decision
8. The applicant appealed to the Board against the Director’s Decision. He had appeared before the Board for examination of his evidence.
9. Although the Board accepted his evidence that he was attacked and that he had been kidnapped, however, the Board rejected his appeal and confirmed the Director’s Decision for the reasons below.
(1) The Board considered that internal relocation was a viable alternative for the applicant [82-86].
(2) Taking the above factor into consideration, the Board found that the applicant failed to demonstrate that he faced a serious possibility of a real risk or that there were substantial grounds for believing he would be at risk of harm or persecution if he relocated to other places such as Dhaka, Chittagong or Sylhet or to other places he had previously stayed in Bangladesh [90].
(3) Bangladesh is not a country with a consistent pattern of gross, flagrant or mass violations of human rights for the purposes of section 37ZI(5) of the Ordinance.
Application for leave to apply for judicial review
10. The applicant filed Form 86 on 31 December 2018 for leave to apply for judicial review of the Board’s Decision.
11. In his affirmation in support of his application, he stated that his life was in danger if he returned to Bangladesh and that he could bring in more documents to prove his case.
DISCUSSION
12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny in light of the grounds advanced by the applicant.
13. The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178, held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22].
14. 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.”
15. The Board accepted his evidence and found that he might be in danger if he returned to where he lived before. But he had the option of internal relocation open to him. Bringing in more documents to prove his case will assist him.
16. The Court of Appeal in TK v Michael Jenkins Esq and Director of Immigration [2013] 1 HKC 526, at §§32 and 33 that if internal relocation is available to him and it is not unduly harsh for him to relocate, there is no justification for affording him international protection under either the Refugees Convention 1951 or the CAT.
17. 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.
18. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.
CONCLUSION
19. I therefore refuse to grant leave for the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.
Dated the 7th day of August 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 7/8/2020
Hossain Mohammad Lokman
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 7/8/2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8719/17/10/49/B999
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1335/17 (formerly RBCZ 1163/12)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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