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

HCAL 1721/2018

[2020] HKCFI 1215

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1721 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 10 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 22 January 2020.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting the Security Bureau and replacing it with the Board as proposed respondent and by deleting the Board and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicant

4.  The applicant is a Bangladeshi national. He came to Hong Kong on 18 November 2006 as a visitor and was allowed to stay until 2 December 2006. He overstayed and was arrested by police 27 January 2007. He was referred to the Immigration Department on the same day. He lodged a non-refoulement claim on 30 March 2007.

5.  He claimed that if refouled, he would be harmed or even killed by people from some political parties, namely the Awami League, Bangladesh Nationalist Party, Jamat-e-Islam, Jatiyo Party, Jashod Party and Communist Party, collectively called (“the political parties”) who had extorted money from him.

6.  He claimed that he had a garment shop in Dhaka and the political parties’ people came to extort money from him from 1981 to 2003. They threatened to cause damage to his shop and kill him if he did not pay. He paid them some 10,000 to 15,000 Taks each time. They came about every 15 days. In August 2003, the business went bad as there were grenade attacks. He was unable to pay as usual. Those people came to vandalize his shop and threaten to kill him. He reported to police. Police did not take up the matter. In late December 2003, he was unable to pay and was kidnapped to an empty park where they beat him with hard tree branches and glass bottles. His legs and right hand elbow were injured and he had to receive plastic surgery on his right elbow. It took 2 to 3 months to fully recover. He reported this incident to police. Again, police did not follow up the matter. Since then, he left Dhaka and lived elsewhere: Chittagong, Mainu Mor, Sylbet, Rampura and his uncle’s home in order to avoid those people. Upon his friends’ advice, he left Bangladesh for China and he landed in Hong Kong.

The Director’s Decisions

7.  The applicant had lodged a Torture Claim Form on 28 March 2013. That claim was rejected on 10 May 2013 and his subsequent petition to the Torture Claims Appeal Board was rejected on 8 July 2014. The Director considered his application in relation to the following risks:

a.     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”);

b.     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

c.     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”).

8.  By Notice of Decision dated 29 March 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that there were no substantial grounds for believing that he would be harmed or killed by people of the political parties upon his return to Bangladesh [13]; that state protection was available to him [16] and internal relocation was an option open to him [23]. His claim under BOR2 risk was not established.

The Board’s Decision

9.  The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 30 May 2018.

10.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

11.  The Board considered the applicant’s evidence and found, for the reasons stated in its Decision, that it rejected all the evidence in relation to his claim as set out in §6 above and that he did not come to Hong Kong for protection and that if he returned to Bangladesh, he would not be subjected to the risks as he claimed [83-90]. See §§54-76 of the Board’s Decision for details.

Application for leave to apply for judicial review

12.  The applicant filed Form 86 on 23 August 2018 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, he said that he was unable to produce the documents to the Board, but now he had obtained the documents. He did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

14.  He appeared before me and confirmed that he was treated fairly when he appeared before the immigration officer and the Adjudicator of the Board. His duty lawyer had explained the Director’s Decision to him. The interpreter of the Board had explained the Board’s Decision to him. He had no comments on the Board’s findings.

15.  He asked me to look at the documents he had obtained. I decline to consider those documents because he should have produced them to the immigration officer or the Board. He has not stated in his affirmation the reasons why he was unable to obtain those documents before he attended the Board and relevance of those documents to his case. This Court is not equipped for verification of those documents. There is no reason that this Court should usurp the Board’s function of investigation of the facts of his case. See the Court of Appeal’s decision below.

16.  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.

17.  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.

18.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

19.  I therefore refuse to grant leave to the applicant 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