RE HASSAN MD

HCAL 334/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 334 OF 2017

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J U D G M E N T

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1.  This is an ex-parte application by the Applicant for leave to apply for judicial review of the decision of the Member of the Torture Claims Appeal Board / Adjudicator of the Non-Refoulement Claims Petition Office (“the Adjudicator”)[1] dismissing his Appeal / Petition.

BACKGROUND

2.  The Applicant is a Bangladesh national. 

3.  He arrived in Hong Kong on 23 June 2014 from Shenzhen by illegal means and was arrested.

4.  On 27 June 2014, he lodged a non-refoulement claim which was refused by the Director of Immigration on 21 July 2016.  On 27 April 2017, the Director invited the Applicant to provide further information in support of his non-refoulement claim relating to BOR 2 risk.  The Applicant did not respond.  By a Further Decision dated 18 May 2017, the Director refused the claim under BOR 2 risk as well.

5.  The Applicant appealed against the decisions of the Director and his appeal was dismissed by the Adjudicator.

6.  28 June 2017, the Applicant filed an application for leave to apply for judicial review against the decision of the Adjudicator.

RELIEF SOUGHT

7.  The Applicant sought the following relief :

(1) an Order of Certiorari to bring up and quash the said decision of the Adjudicator;

(2) further or alternatively, an order that the matter be remitted to the Torture Claims Appeal Board to reconsider the application in the light of this judgment;

(3) an oral hearing if leave is not granted on paper (and thus this hearing);

(4) an Order for costs; and

(5) such remedy, relief or order as the court considers just and appropriate in the circumstances.

GROUNDS OF REVIEW

8.  The Applicant appeared in person.  The ground of review he put forward was breach of procedural fairness, with the following particulars :

(1) The Adjudicator unlawfully fettered his discretion by refusing the appeal on ground that they did not satisfy the requirement;

(2) He acted in a procedurally unfair manner in dealing with the appeal;

(3) His decisions to refuse the appeal were unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness; and

(4) He failed to meet the greater care and duty owed to a self-represented claimant.

9.  He also complained that as most of the documents were in English there was insufficient time for him to prepare for the hearing due to his limited skill in English and being unrepresented.  He was confused of what was happening.  He also alleged that the Adjudicator had relied on hearsay and incredible information as well as outdated cases.

FACTUAL BASIS FOR THE NON-REFOULEMENT CLAIM

10.  The Applicant had worked as a photographer for 10 years.

11.  He was originally a supporter of the Awami League (AL).  When AL lost power, he changed to support the Bangladesh Nationalist Party (BNP) and engaged in a variety of activities. 

12.  Since the election campaign in 2008, AL supporter came to his studio and threatened to break his shop if he did not return to AL.

13.  On a day in 2008, having heard that people had broken into the office of BNP, the Applicant rolled down the shutter of the shop.  People tried to open the shutter even with explosives and bombs.  He managed to escaped from the back door.

14.  On the following day, he went to the court with some BNP supporters to file a case but were stopped by AL supporters.  Attack followed.  He was injured and there was threat to kill him if he walked into the court.  He escaped and received treatment in a private clinic.  He did not make a report as he was scared and believed that AL was capable of controlling the police.

15.  He later moved to Dhaka to avoid the AL.  He continued to provide service and organised campaigns for BNP.  His family also joined him for fear of AL.

16.  On a day in 2010, when he was walking with some BNP colleagues, they were attacked by some AL people.  He managed to escape without any injury.  When he went to report to the police, he was told no help could be provided.

17.  Some days later, his wife was attacked by AL people at home.  They even displayed firearms at the landlord.  The family decided to move.

18.  He stayed low profile and nothing eventful happened until 2011.  He was told that AL people were looking for him.  He was also informed by the police that he was accused of vandalising an AL office. In the circumstances, he fled to Malaysia.

19.  There he overstayed and was eventually granted residency for 3 years until October 2013.  He was told that AL people were still looking for him and had threatened to make false allegation against him so that he would be jailed.

20.  In October 2013, he returned to Bangladesh to assist BNP in the election campaigns.  The election was won by AL.  He heard that BNP people were attacked and he and other BNP supporters would face false criminal allegations. 

21.  Eventually, he decided to come to Hong Kong to seek asylum.  He arrived in China on 21 June 2014 and came by boat on 23 June 2014.

HEARING OF THE APPLICATION

22.  At the hearing, the Applicant asked for time to prepare for evidence to prove the alleged wrong doings of the AL people which he said has still been continuing.  He said that the evidence if available will be in the form of photographs and video recordings taken at the scene of the wrong doings he had alleged in support of his application.  He confirmed that if the request for time is not granted he has nothing to add in relation to the application for leave and would rely on what he had already filed in court.

DISCUSSION AND CONSIDERATION

23.  As regards the additional evidence which the Applicant sought to adduce, I do not find the Applicant able to justify why this evidence which is available all along was not produced before the Adjudicator and is now still yet to be obtained.  In addition, the Applicant is not in a firm position to tell when and how he is able to obtain the evidence he alleged to be in existence.  I do not see the basis why the court has to accept the evidence at this stage.

24.  Besides, and more importantly, in my judgment the additional evidence is not going to materially enhance the case of the Applicant.  The primary basis of the decision of the Adjudicator is his rejection of the Applicant’s claim of his past political activities and support for BNP, and his assessment that there did not exist a real risk to the Applicant of harm from supporters of AL if he was to be refouled to Bangladesh.  In forming his view, the Adjudicator set out in detail what he described as “multi-inconsistencies” in the evidence of the Applicant.  The inconsistencies mentioned by the Adjudicator do not confine to the wrong doings which the Applicant mentioned at the hearing and what the additional evidence which the Applicant sought to adduce relates to.  

25.  For these reasons, I refuse the application for time to obtain the evidence and have the hearing adjourned.

26.  I therefore proceed to consider the application for leave.

27.  It was confirmed by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[2] that the test in deciding whether leave to apply for judicial review should be granted is whether the Applicant’s case is reasonably arguable, in other words, whether it enjoys realistic prospect of success.

28.  The Applicant has to substantiate his non-refoulement claim under the applicable grounds.  The task of the Adjudicator was to examine whether on the evidence before him any of the applicable grounds had been made out.  The Adjudicator had considered and decided that none of the grounds had been made out.  He has fulfilled his duty.  I do not consider it reasonably arguable that the Adjudicator had unlawfully fettered his discretion in refusing the appeal. 

29.  As regards the allegation of procedural unfairness, there was only general observations from the Applicant and he has not pinpointed at any particular aspect or conduct on the part of the Adjudicator.  The Adjudicator had conducted an oral hearing in which he asked the Applicant questions and discussed with him all the applicable grounds and let him have the opportunity to make submissions.  There was no allegation from the Applicant that there was / were findings of the Adjudicator which was based on misunderstanding of facts / circumstances of the Applicant.  In his consideration, the Adjudicator was entitled to take into account all relevant information which is not confined to evidence of a nature admissible in a trial under the strict rules of evidence.  Of course he was under a duty to assess truthfulness and reliability of the information.  I do not find any material flaw in his consideration.   

30.  In relation to Ground 3, as I have said the allegations of procedural errors and unfairness are not reasonably arguable. The Applicant further submitted that the decision of the Adjudicator was unreasonable or irrational in the public law sense.  Having perused the Decision of the Adjudicator carefully, I cannot find this allegation reasonably arguable.

31.  As regards Ground 4, bearing in mind the Applicant was acting in person and accepting that his proficiency in English is not good, I am not able to find any indication that the Adjudicator had failed to perform his duty in an appropriate manner.  It can hardly be said that he failed to exercise the level of care expected of him in the circumstances.  I do not consider it can be reasonably arguable that there were material wrongful consideration of the evidence and that the decision was unreasonable in the Wednesbury[3] sense.

32.  Judicial review is not a further or alternative appeal procedure.  As said by Lam J, as he then was, in TK v Director of Immigration[4], in the context of judicial review of a decision of an adjudicator, the crucial issues are :

(1) whether the adjudicator committed any error of law in his decision;

(2) whether the procedures adopted at the hearing of the petition satisfied the high standard of fairness; and

(3) whether the substantive decision satisfied the enhanced Wednesbury test.

33.  I have considered the Decisions of the Adjudicator. I am not persuaded that any allegation by the Applicant is substantiated in the sense that there is realistic prospect of success.

CONCLUSION

34.  The Applicant has not satisfied me that there is any matter based on which there is realistic prospect of success to apply for judicial review against the decisions of the Adjudicator.  Leave to apply for judicial review is not granted.