MD IMTIAZ AHMED CHOWDHURY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]
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HCAL 310/2017
[2024] HKCFI 3374
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 310 of 2017
BETWEEN | ||
| Md Imtiaz Ahmed Chowdhury | Applicant | |
| and | ||
| Torture Claims Appeal Board / Non-Refoulement Claims Petition Office | Putative Respondent | |
| and | ||
| 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:
consideration of the documents only; or consideration of the documents and oral submissions by the Applicant in open court;
Order by Deputy High Court JudgeLevy:
The Leave Application be dismissed.
Observations for the Applicant:
Introduction
1. By prescribed Form 86 filed on 20 June 2017, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Torture Claims Appeal Board (“the Board”) dated 16 June 2017 (“Board’s Decision”). The Board had dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) who had refused the applicant’s claim for non-refoulement protection.
Background
2. The background as taken from the two decisions of the Director dated 16 June 2015 and 17 November 2016 as well as the Board’s Decision can be briefly stated as follows.
3. The applicant came from Bangladesh. He arrived in Hong Kong on 3 November 2006, and was required to depart from Hong Kong on 5 November 2006. He illegally overstayed until he was arrested on 13 November 2007 by police for the offences of (a) possession for sale or for any purpose of trade or manufacture goods to which a forged trademark was applied; and (b) breach of condition of stay. After he had served his four months’ imprisonment sentence, he lodged a non-refoulement claim on 8 January 2008, covering all applicable grounds of torture risks[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on his fear that he would be arrested and harmed by the police and imprisoned for life if he were refouled to his country.
4. The Director decided against the applicant’s claim on all applicable grounds. Hence, the appeal to the Board.
5. In the Board’s Decision, the Board found that the applicant’s behavior was not consistent with someone who genuinely sought non-refoulement protection and that the applicant failed to establish his claim on all the aforesaid grounds.
Legal principles applicable to judicial review
6. As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh[2018] HKCA 246; Re Daljit Singh[2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and Nupur Mst v Director of Immigration[2018] HKCA 524.
Discussion and conclusion
7. The applicant’s Form 86 did not contain any grounds for seeking relief. As for the grounds contained in his supporting affirmation of the same date, they can be broadly summarized as follows.
8. First, there was procedural impropriety. It was stated that the Board only used “his own way” when assessing his fear of facing imprisonment in relation to two pending criminal cases. Second, the Board had failed to properly consider the country of origin information in finding that state protection was available if he were to return to Bangladesh.
9. Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the four grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. The Board had taken all the relevant circumstances of the applicant’s claim into account in its assessment. I find that it was perfectly open to the Board to come to its conclusion that the applicant had failed to discharge the burden of proving the asserted fears and risks.
10. For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. The Leave Application is accordingly dismissed.
The removal of the applicant
11. The court has recently received information from the Immigration Department that the applicant was removed from Hong Kong.
Dated the 4th day of December 2024
| (Allen LEE) 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: | ||||
| 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)). | Sent to the Applicant on 4/12/2024 Md Imtiaz Ahmed Chowdhury Applicant’s ref. no: Nil | 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 4/12/2024 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 1795/15/6/181/B247 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 604/08 (formerly as RBCZ 309/08) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2) |
Form CALL-1
[1] This refers to the risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap.115.
[2] This refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”).
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[5] This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293.