KARIM MD REJAUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL403/2017

[2018] HKCFI 567

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 403 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is a Bangladeshi national who claimed to have arrived in Hong Kong illegally on the same day that he was arrested by the police on 21 April 2014.  He then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 29 December 2015 and 23 February 2017.  He lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which was rejected on 12 June 2017.  He filed a notice of application for leave to apply for judicial review on 12 July 2017 but in his affirmation he did not set out any grounds so this court gave him the hearing date of 6 December 2017.  He had not requested an oral hearing but to be fair to him, an oral hearing would give him a chance to voice any grounds in open court.

Exercise of discretion to lift the 42-day stay pending a legal aid application

2.  The applicant applied for legal aid on 25 October and the required memorandum was filed.  Under section 15 of the Legal Aid Ordinance and its regulations, there is usually an automatic stay of proceedings of 42 days following an application for legal aid unless otherwise ordered by the court.  It is in the court’s discretion.  Mr Recorder Kwok SC, in Bank of China (Hong Kong) Ltd v Fu Ming Kong Michael and Anor HCA 7769/2000 and HCMP 3909/2000, unreported, 24 June 2005, stated that:

“ 26. The purpose of the statutory stay under section 15 of the Legal Aid Ordinance is to allow sufficient time: –

(a) for the Director to process an application for legal aid; and

(b) in the event of legal aid being granted, for the assigned lawyer(s) to effectively represent the assigned client, and, where appropriate, to apply for more time.

27.The statutory stay is an aid in, not an obstacle to, the administration of justice. …”

3.  The Court of Appeal in Lee Shiu Ming v Yeo Hiap Seng (Hong Kong) Ltd CACV 39/1993, unreported, set out the principles for the court’s guidance when considering whether to lift the legal aid automatic stay.  The guiding principle is to do what is fair and just between the parties.  Yuen J (as she then was) in Re Ip Lai Fan and Ip Lam On HCSD 10 and 11/2000 (unreported), 3 November 2000, summarised Nazareth JA’s (as he then was) guidance in the Lee Shiu Ming case as follows:

“ … a court should be slow to lift a stay before an application for legal aid is determined, especially if a point of law had to be dealt with by a layman. However, if a court was satisfied that the application for legal aid was an abuse of process, then the court should exercise its discretion to lift the stay.”

4.  The chronology of this application is as follows:

•  On 29 December 2015 and 23 February 2017 the Director decided the claim was not substantiated.

•  On 12 June 2017 the adjudicator of the TCAB decided the claim was not substantiated.

•  On 14 July 2017 the applicant filed a Form 86, a notice of application for leave to apply for judicial review.

•  On 3 August 2017 the court wrote to the applicant to confirm if he was represented or was in the process of applying for legal aid.

•  On 14 September 2017 the court set down a hearing date of 6 December 2017 for leave to apply for judicial review as requested and notified the applicant.

•  On 25 October 2017 the applicant applied for legal aid.

5.  The applicant explained in the oral hearing that he did receive the court’s letters in Augustand September but because he cannot read he did not apply for legal aid until somebody read the letters for him and took him to legal aid department in October.  This is not a reasonable excuse for the delay in making an application.  The matter of legal aid was bought to the applicant’s attention as earlyas August.  In my view there is no good reason for the timing of the late application for legal aidexcept to delay the hearing by at least 42 days.  This applicant is abusing the process.  I exercised my discretion and lifted the legal aid automatic stay.

Observations

6.  The basis of the applicant’s claim was that if he were to return to Bangladesh he would be harmed or killed by people of the Awami League (“AL”) because he was a member of the Bangladesh Nationalist Party (“BNP”) and had assaulted and seriously injured an AL member Shahidul (“Shah”). Both the adjudicator of the TCAB and the Director have set out the applicant’s claim and evidence in full in their decisions therefore, I only intend summarise it here.

7.  The applicant worked as a farmer for six years and then a driver for 17 years in a transport company.  He joined the BNP as a member in about 1994 when aged 17.  In 2010 he had a political argument with Shah and hit him with a wooden pole, seriously injuring him.  He was hospitalised.  He immediately left and moved to a place some 60 km away where he lived and continued to work for the next three years as a driver.

8.  One day at work, some drivers told him that four people from his home village had come looking for him; they did not appear to be friendly.  The applicant assumed they were AL members and his life was in danger.  He immediately fled to his aunt’s home some distance away leaving his wife and children behind.  They were supported by his father-in-law.  One day in 2014, when he was sitting in a hair salon in his aunt’s village, he was suddenly attacked by three men on bikes with hockey sticks.  He recognised them as AL men from his home village.  They attacked without saying anything and smashed mirrors and hurt his leg.  The salon owner saved him from serious injury.  He did not report this to the police.  His family then arranged for him to go to Dakar and leave Bangladesh.  He flew to Mainland China where he stayed for about a month before entering Hong Kong illegally in April 2014.

9.  The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds:

(a)  risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“torture risk”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)  risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)  risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

10.  The adjudicator treated the appeal as a rehearing.  He conducted an oral hearing and the applicant elected to give evidence and answer questions.  The adjudicator correctly set out the law and key legal principles relevant to the four applicable grounds.  He set out the applicant’s claim and evidence.  He set out and referred to the country of origin information he found relevant.  He noted and adopted the Director’s Part A of his decision.

11.  As far as the torture risk is concerned, he considered and set out the definition of torture under section 37U(1) of the Immigration Ordinance.  He found even on the applicant’s own evidence he did not make out a claim for torture as defined under the section.  He was not a target of the state, he was not targeted for the purposes as set out under that section and there was no evidence those that did target him were state officials or people acting in an official capacity.  His torture risk claim failed.

12.  The adjudicator found that there was no real risk the applicant will arbitrarily be deprived of life, have the death penalty imposed on him or otherwise be deprived of his rights under BOR 2; his BOR 2 risk claim failed.

13.  With regard to a BOR 3 risk, the adjudicator found that there was no evidence of severe injury or serious harm which would place him within the criteria of CIDTP; harm that had reacheda minimum level of severity.  Further there was no substantial grounds for believing he will face any future risk of torture or CIDTP if refouled to Bangladesh; his BOR 3 risk claim failed.

14.  Lastly, the adjudicator found he was not at risk of persecution because of his race, religion, nationality, membership of a particular social group or because of his political opinion.  He did not have a well-founded fear of being persecuted for any of the Refugee Convention grounds.  His fear stemmed from a very few number of men who he says seek revenge for an assault by him on Shah.  His persecution risk claim failed.  The adjudicator confirmed the decision of the Director.

15.  The adjudicator also considered Country of Origin information and concluded that there was, if the applicant was at any risk, available to him state protection as well as the option of internal relocation if he was not wanted by the police for wounding or killing Shah.

Leave to apply for judicial review

16.  As I said above, there are no grounds in the applicant’s affirmation but I have nevertheless, considered with rigourous examination and anxious scrutiny the adjudicator’s decision.  During the oral hearing, the applicant submitted that his documents were not considered properly by the adjudicator.  The fact that he was badly beaten and injured was not properly taken into account.  The fact was his life was still in danger if he returned to Bangladesh; the risk was high and was ignored.  He submitted that the general elections were to be held very soon and if the BNP would come into power he would go home anyway.

17.  I do know from the adjudicator’s decision that the applicant told him he has no medical report, hospital report or any documents because they had been lost.  There is no other reference to documents from the applicant.

18.  I do not find any errors of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision is not Wednesbury unreasonable.  In my judgement the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

Form CALL-1