KHAN MD AL AMIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL1555/2018

[2020] HKCFI 71

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1555 of 2018

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 be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as interested party.

2.  The applicant requested a hearing.  The hearing was fixed at 10:00 am on 30 January 2019.  However, the applicant was absent on that day.

3.  By an Order dated 30 January 2019, this Court dismissed his application for want of prosecution.

4.  The applicant failed to take out an application for leave to appeal against the said Order to the Court of Appeal within time.  By a letter received by this Court on 9 April 2019, the applicant said that he was being detained in prison and that he wished to appeal against the ex parte Order dismissing his application.

5.  On 15 April 2019, this Court gave directions that a hearing would be fixed and the applicant should file an affirmation to state his reasons for his absence on 30 January 2019 within 7 days from the date of the direction. On 30 May 2019, the applicant was informed that a hearing had been fixed at 10:00 am on 26 June 2019.

6.  The applicant did not make an affirmation. By letter, the applicant informed this Court that since 14 August 2018, he was being detained in the prison for the offence concerning dangerous drug and he did not receive the court’s Form Call-1 too. This had been verified by the Court.

7.  I am satisfied with his explanation for his absence on 30 January 2019.

8.  Under Order 32, rule 6 of the Rules of the High Court (“RHC”), this Court has the jurisdiction to set aside an order made ex parte.  Pursuant to Order 1A, rule 1 and Order 1B, rule 1(2)(l) of RHC, I shall now treat the applicant’s application as an application to set aside the order which I made on 30 January 2019 dismissing his application.  The said order is now set aside.

9.  I shall now consider the applicant’s application for leave to apply for judicial review of the Director’s Decision and the Board’s Decision.

The applicant

10.  The applicant is a Bangladeshi national. He arrived in Hong Kong illegally on 7 August 2015. On 10 August, 2015, he surrendered to the Immigration Department. He attempted to make a non-refoulement claim but was refused by the Immigration Department. He was charged and convicted of possession of a dangerous drug. He was sentenced to four weeks’ imprisonment. On 6 November 2017, with the assistance of a lawyer from the Duty Lawyer Service, he lodged a non-refoulement claim.

11.  He claimed that if refouled, he would be killed by the members of the Awami League (“AL”) because he refused to join them. He belonged to the Bangladesh Nationalist Party (“BNP”) himself. In 2011, in the middle of a gathering with other BNP members, about 100 members of AL came and assaulted them with sticks and hockey sticks. He was injured and had to stayed in hospital for three days. In 2011, whilst he as in another BNP meeting, about 100 members of AL came to attacked them with hockey sticks. He was injured on his back and right middle finger. Two months later, a few AL members approached him and invited him to join AL. He refused. They threatened to kill him. Not long after this incident, member of AL went to his home three times looking for him. He as located on the third occasion. They asked him to follow them to a certain place. On the way, they suddenly attacked him by punching and kicking. He screamed and escapes. His father arranged him to come to Hong Kong.

The Director’s Decision

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

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

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. 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 under RC”).

13.  By Notice of Decision dated 27 December 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was not substantiated.

The Board

14.  The applicant appealed to the Board and attended a hearing before the Adjudicator on 16 May 2018.

15.  By Decision dated 19 July 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

16.  Having considered the evidence, the Board found that the applicant’s evidence was inconsistent and contradictory. It therefore came to conclusion that he was not a reliable witness [61]. It therefore concluded:

“64. … the Board considers there is not a real risk the Appellant would face any of the proscribed forms of harm from AL members or police due to his support or membership of the BNP or specifically the Chhatra Dal or his refusal to join the AL, should he return to Bangladesh.”

Application for leave to apply for judicial review

17.  By Form 86 dated 6 August 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Director’s Decision and the Board’s Decision.

18.  The applicant relied upon grounds of misdirection in the law; procedural impropriety or unfairness and irrationality attached to his Form 86, which are summarized as follows:

(1) the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare his case;

(2) the contents of the hearing bundle were in English and he was unable to obtain interpreter service;

(3) he was confused at the appeal hearing;

(4) the Adjudicator was unfair and had not given greater care to a self-represented claimant;

(5) the Adjudicator had misdirected himself by considering that the applicant had to experience torture in the past in order to establish substantial grounds to believe that there was a real risk of torture in future;

(6) the Adjudicator had applied the incorrect standard of proof;

(7) the Adjudicator had considered irrelevant facts or had failed to considered facts which were in favour of his case;

(8) the Adjudicator had not done sufficient research in the Country of Origin Information (“COI”) and her knowledge was not updated;

(9) the Adjudicator had relied upon hearsay information and outdated material in relation to COI;

(10) the Adjudicator had cherry-picked and given undue weight on the irrelevant material, neglecting the materials favourable to his case;

(11) the Adjudicator had not considered USHR 2010, USFR 2010 and The International Commission of Jurists (ICJ) “Report on the ICJ Mission to Bangladesh” Autumn 2011, which is favourable to his case;

(12) the Adjudicator failed to fulfil her obligation to obtain the requisite documents for her adjudication;

(13) the Adjudicator was wrong in state protection in his country;

(14) BOR 2 risk was assessed without screening;

(15) the Adjudicator failed to call for psychological and psychiatric reports on the applicant; 

(16) the applicant was not legally represented before the Board, which was in breach of procedural fairness; and

(17) the Adjudicator failed to obtain the requisite documents to properly adjudicate his case.

DISCUSSION

The Board’s Decision

19.  The applicant appeared before me. He said that except that the Adjudicator did not allow him time to get medical report and police documents in support of his case, he was able to speak freely and tell his stories fully to the Adjudicator.

20.  According to the Board’s Decision, he had been given two weeks to submit documentation to the Immigration Department, but he failed to do so [61]. The Board did not see it necessary to adjourn the matter for documents.

21.  I asked him what medical documents and police documents he would like to get from Bangladesh to support his case. He was unable to specifically identify them. I put the Board’s findings to him and told him that the Board found inconsistencies and contradictions in his evidence relating to facts, such as he described an incident with different dates and time. I asked him how those documents could explain such inconsistencies or contradictions. He was unable to answer the question.

22.  In fact, he had asked this Court to adjourn the hearing for four months because he was not feeling well and he could not remember things well. There was no medical evidence to support his complaint. I refused his application and continued with the hearing, which took about 20 minutes. The hearing went on quite smoothly. He was able to answer my questions.

23.  It is obvious that the Board had concluded that the factual basis of the case did not support his claim.

24.  The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant does not have the absolute right of free legal representation at every stage of the proceedings. He had already had free legal representation at the screening stage before the Immigration office, which is very important stage for fact finding. The Board also relied upon such findings to assess his appeal. He cannot complain that he did not have legal representation at the appeal stage or for this application.

25.  The applicant has the burden to raise substantive grounds for his application, with particulars and explanation as to why he considers those grounds support his application. See Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29, and Rasaratnam v Canada (Minister of Employment and Immigration) [1992] 1 FC 706; Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 FC 589. [31] TK v Jenkins & Another [2013] 1 HKC 526, C.A. at §25.

26.  This fundamental burden applies at every stage of the proceedings though the court has the duty of applying the enhanced standards of fairness in the assessment of his case. A general statement or comment without identifying the facts or issues, telling this Court in what respect such facts or issues would cause prejudice to his appeal before the Board is simply not sufficient.

27.  I shall deal with his grounds in his affirmation.

28.  He has confirmed that his lawyer had explained the Director’s Decision to him and he had no problem with the Hearing Bundle for the appeal as his friend had explained it to him. His friend had also explained the Board’s Decision to him.

29.  The fact that the Director decided not to have another screening for BOR 2 risk is simply not true. According to the Director’s Decision, BOR 2 risk was assessed in the same screening together with other risks.

30.  All other grounds do not sustain as they are either opinions or he has no reasons to complain.

31.  As to the grounds in his affirmation in support of this application, they are either repetitive of the grounds above or they are grounds not relevant to the reasons on which the Board refused his appeal.

32.  The applicant fails to show that he has any reasonable chance of success in his proposed judicial review.

CONCLUSION

33.  Since the applicant’s application for the intended judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. 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