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HCAL 2977/2018
[2020] HKCFI 1199
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2977 of 2018
BETWEEN
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Miah Kabir |
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 21 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant did not request an oral hearing. The Court will deal with his application on paper.
The applicant
3. The applicant is a Bangladeshi national. He came to Hong Kong on 25 January 2016 illegally by boat through China and was arrested by police. He lodged his non‑refoulement claim by written representation dated 6 February 2016.
4. He claimed that if refouled, he would be harmed or killed by members of the Awarmi League (“AL”) because he is a member of the Bangladesh Nationalist Party (“BNP”). He also fears that he would be arrested by the Bangladeshi police for a framed-up case against him for vehicle vandalism during a demonstration in 2014.
5. He took part in a demonstration in 2014. The AL people came to assault them. Police came to arrest the BNP demonstrators. He ran away. People had vandalized the vehicles at the scene. He did not take part in the vandal himself. However, he learned that his name was on the wanted list for the charge of vandalism. He fled to other places in Bangladesh and he had also gone to India. Finally, he went to China, from there he went to Hong Kong.
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 7 February 2018, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the risk level of harm was low if he returned to Bangladesh [11]; that state protection was available to him [12]; that internal relocation was an option open to him [17] and that his claim under BOR2 risk was not established.
The Board’s Decision
8. The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 12 September 2018.
9. By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.
10. The Board considered the applicant’s evidence and found that other than the fact of his nationality and his affiliation with BNP and that he had been to other places, there was doubt as to whether a charge of vandalism had been laid against him; and even if such a charge were laid against him, there was no evidence to show that the charge was fabricated, and the Board did not accept other matters such as threats or attack by the AL people and the police [39]. Therefore, all grounds in support of his claim failed.
Application for leave to apply for judicial review
11. The applicant filed Form 86 on 27 December 2018 for leave to apply for judicial review of the Board’s Decision.
12. In his affirmation in support of his application, he did not set out any ground in support of his application. He did not say what error the Board had committed in coming to its decision.
DISCUSSION
13. The Board did not accept the applicant’s factual evidence. He therefore has no factual basis in support of his claim.
14. In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.
15. There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusion on the facts of the case.
16. The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.
CONCLUSION
17. I therefore refuse to grant leave to the applicant to apply for judicial review. Accordingly, I dismiss his application.
Dated the 16th day of June 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 16/6/2020
Miah Kabir
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 16/6/2020
Torture Claims Appeal Board/ Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10422/18/2/306/B1165
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 3355/17 (formerly RBCZ 10823/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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