S M Shahabuddin v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office [Decision On Leave Application]

CourtCourt of First Instance (Hong Kong)
Judgment Date02 June 2020
Neutral Citation[2020] HKCFI 1004
Subject MatterConstitutional and Administrative Law Proceedings
Judgement NumberHCAL2892/2018
HCAL2892/2018 S M SHAHABUDDIN v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2892/2018

[2020] HKCFI 1004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2892 of 2018

BETWEEN

S M Shahabuddin 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 documents only; or
consideration of documents and oral submission by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

The applicant

1. The applicant is a Bangladeshi national. He came to Hong Kong as a visitor on 13 December 2007 and was permitted to stay until 20 December 2007. Subsequently, he made several trips to the Mainland China and last returned to Hong Kong on 28 January 2008. He was permitted to stay until 4 February 2008. He overstayed and was arrested by police on 21 April 2008.

2. On 23 April 2008, he was referred to the Immigration Department for investigation. He lodged a torture claim on 30 April 2008. He was interviewed by the immigration officer on 26 September 2016 for assessment of Torture risk, BOR 3 risk and Persecution risk as discussed below. At the interview on 26 September 2016, he was informed that BOR 2 risk would also be assessed under the Unified Screening Mechanism. Another interview was arranged to take place on 10 November 2016.

3. However, he was indisposed on that day. He received a list of questions from the Immigration Department. He answered those questions with the aid of the duty lawyer. The assessment was made by reference to the evidence at the hearing on 26 September 2016 and his answers without a hearing.

4. He claimed that if refouled, he would be killed by the members of the Bangladesh Nationalist Party (“BNP”) because he was targeted specifically for political retaliation and he was implicated in criminal cases as a result of being specifically targeted for political retaliation by the police and the Rapid Action Battalion in Bangladesh as he was a member of Awami League (“AL”).

5. He said that he was a committed member of AL. On 21 August 2004, he attended a large rally in the capital city where senior leaders of AL attended. The rally was attacked and grenades were thrown, killing senior leaders of the party. He was not harmed. However, he discovered that he was falsely charged with throwing the grenades. He fled his home area to Chittagong and other parts of Bangladesh to stay with friends and relatives. He came to know that police had gone to his home to look for him. He left Bangladesh for India and came back, then departed for China. He finally chose to come to Hong Kong in December 2007.

The Director’s Decision

6. The Director considered his application in relation to the following risks:

a. torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);

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 5 January 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

8. The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 18 September 2018.

9. By Decision dated 21 November 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

10. The Board considered the applicant’s evidence. It came to the conclusion:

“45. Looking at all of these matters in the round, in particular the appellant’s poor oral evidence, the fact that he provides no support for his mere assertions when such support should be readily available, and his behavior since 2006, I conclude no credence whatsoever can be attached to any of the appellant’s claims.

46. There appears to be no dispute the appellant is a national of Bangladesh, but beyond that I can make no positive findings of fact.”

11. The Adjudicator came to the above conclusion having considered the evidence below.

a. The applicant’s account of the events was extremely vague, with numerous lacunae, which he took no steps to fill [29].

b. He said that there were arrest warrants against him, but he travelled in and out of Bangladesh on four separate occasions, passing through the immigration control on no fewer than seven occasions [30&31].

c. He did not make any claim for international protection during his first three visits in Hong Kong. He did so only after he was arrested for immigration offences [32].

d. His other evidence and his behavior only negatively contributed to the Adjudicator’s conclusions in relation to his credibility [33].

e. He said that he was committed to AL’s political work,...

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