HKCFI 487
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1963 of 2018
|William Lam, ESQ,
Torture Claims Appeal Board
|The Director of Immigration
||Putative Interested Party
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
||consideration of the documents only; or
||consideration of the documents and oral submissions by the Applicant in open court;
Order by Deputy High Court Judge Bruno Chan:
1. extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 20 January 2017 refused; and
2. the application for leave to apply for Judicial Review dismissed.
It is further directed that:
3. if the Applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;
4. when filing the application for leave to appeal, the Applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;
5. the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;
6. if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and
7. liberty to apply.
Observations for the Applicant:
1. The Applicant is a 37-year-old national ofBangladesh who entered Hong Kong illegally on 16 August 2007 and was arrested by police on 10 May 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by his former business partner and/or his customer over certain business disputes. He was subsequently released on recognizance pending the determination of his claim.
2. The Applicant was born and raised in Village Bashira, District Munshiganj, Bangladesh. After leaving school he worked in an engineering workshop building flour processing machines, and in 2005 he formed his own workshop in partnership with his friend Badal in District Narayanganj assembling flour machines and machine parts for their customers.
3. In May 2006 the Applicant secured a lucrative contract with a wealthy mill owner Shah Alam to build and set up flour machinery in his mill within one year, for which a sizable deposit was paid to the Applicant for purchasing machine parts and materials.
4. However, one day in October 2006, Badal suddenly telephoned the Applicant to tell him that he did not want to continue with their partnership, and when the Applicant arrived in their workshop on the same day, Badal was already there with several of his followers arrived shortly and refused to allow the Applicant to remove anything from the shop, claiming that the workshop and everything in it belonged to him alone by producing some documents showing that he was the sole owner of the shop and its business, and when the Applicant insisted that those documents were fake and that he wanted to enter the shop, Badal’s followers pounced on the Applicant by punching and kicking him until they were restrained by other shop owners in the neighbourhood.
5. After the incident the Applicant made a complaint to the village elders and the local police, but neither refused to do anything after Badal had shown them those documents. The Applicant then met with Shah Alam the mill owner to explain to him that under the circumstances he would not be able to fulfill the contract, but Shah Alam insisted that he must either fulfill the contract or to return the deposit to him.
6. The Applicant therefore returned to the workshop to try to resolve the dispute with Badal but to no avail, and after Shah Alam had called him again to press him for the return of the deposit and threatened to kill him if he failed to do so, the Applicant therefore fled from his home district to take shelter in different places of his friends in Chittagong, Muradpur, Jurain and Dhaka without further incidents, but as he still felt it was not safe in Bangladesh, he therefore departed on 5 August 2007 for China, and from there he later sneaked into Hong Kong and raised his torture claim later taken as a non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 21 March 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.
7. By a Notice of Decision dated 19 June 2014 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).
8. In his decision the Director took...