MD MIJANUR RAHMAN v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2313/2018

[2022] HKCFI 1728

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2313 of 2018

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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 12 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for him.

3.  However, due to COVID-19 pandemic, the government discouraged social gathering and the court had to suspend hearings for a period of time. The court sent a letter to the applicant and invited him to make written submissions in order to dispense with hearing in court. The letter further said that if he takes the view that it is not possible to make written submissions in place of oral hearing, he should so inform the court, stating his reasons why this is the case and if he does not respond to the letter within 7 days, the court will proceed to consider his application on paper. The written decision will be sent to the applicant in due course.

4.  The applicant did not respond to the court’s letter.

5.  Under Order 53 rule 3(3) of the RHC, it provides:

“The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application….”

  Under Order 1A rule 1(b) of the RHC, the underlying objectives of the rules are to ensure that a case is dealt with as expeditiously as is reasonably practicable. Under Order 1B rule 1(l), the court has the power to take steps to make any order for the purpose of managing the case and furthering the underlying objectives set out in Order 1A. I consider that the court has the power to dispense with open hearing of the applicant’s application without doing injustice to his application. I therefore proceed to consider his application on paper.

6.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

7.  The applicant is a national of Bangladesh. He entered Hong Kong illegally on 15 June 2009 and was arrested by the police on the same date. On 18 June 2009, he lodged a torture claim, which was later taken as a non-refoulement claim upon the commencement of the unified screening mechanism. His claim was made on the basis that, if refouled, he would be harmed or killed by the Awami League (“AL”).

8.  According to the applicant, he had been actively involved in promoting the Bangladesh Nationalist Party (“BNP”) from 1993 to 2009. One afternoon in early January 2009, while he was dining in a snack shop, seven to eight armed terrorists from the AL stormed in, looking for the applicant. He successfully escaped from the incident and went into hiding. He later heard that his friend Jamal was seriously beaten and his family were threatened by the same terrorists. Thereafter, the AL members kept chasing the applicant. They destroyed his house, threatened his family members and attacked him once in May 2009 with hockey sticks. Out of fear, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 9 of the Notice of Decision dated 25 September 2017 by the Director (the “Director’s Decision”) and paragraph 18 of the Board’s Decision.

The Director’s Decision

9.  The Director considered the applicant’s claim in relation to the following risks:

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

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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”).

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on the basis that he would not face any real risk of harm upon refoulement. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [17]-[27]; (ii) state protection would be available to him [28]-[29] and (iii) internal relocation was a viable alternative [30]-[34].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. On 5 June 2018, the Board conducted an oral hearing for his appeal.

12.  Having considered the evidence and sought clarifications from the applicant, the Board made the following findings. Firstly, the applicant was only a low ranking member within the BNP. Secondly, on his own evidence, he did not sustain severe injuries during the alleged incidents [21]. Thirdly, he was not a personal target of the AL and the death threats were simply hearsay. Fourthly, state protection was available to him [25]-[27]. Fifthly, his claimed enemies did not hold powerful positions in the AL and there was no evidence that they could locate him everywhere in Bangladesh. Thus, internal relocation was also available [45]-[49].

13.  As a result, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

14.  The applicant has filed Form 86 dated 23 October 2018 for leave to apply for judicial review of the Board’s Decision.

15.  In his affirmation in support of his application, the applicant submitted the grounds as summarized below.

(1)  He was not legally represented in the appeal hearing and he had no legal advice.

(2)  The hearing bundle was given to him a few days before the appeal hearing. The contents are in English and he could not get an affordable interpreter service.

(3)  He asked the Board to notify him of its Decision by phone. The Board did not do so. It sent a letter to him instead.

(4)  The assessment of BOR2 risk was done without screening.

(5)  It was wrong for the Board to reject his claim.

DISCUSSION

16.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

19.  Those grounds above are not valid reasons to challenge the Board’s Decision.

20.  The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22]. Ground (1) fails.

21.  The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held: “Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.” There was no complaint before the Board that he did not have sufficient time to prepare the hearing. Ground (2) fails.

22.  The Board has no legal obligation to notify him by phone. Ground (3) fails. There had been screening for his claim on the full facts of his case. The Ordinance does not provide for another fact screening for BOR2 risk. Ground (4) fails too. Ground (5) is only his opinion.

23.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

24.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

25.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. 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