MIAH BACHCHU v. TORTURE CLAIMS APPEAL BOARD

HCAL 88/2017

[2018] HKCFI 200

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

NO 88 OF 2017

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D E C I S I O N

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Introduction

1.  This is an application for leave to apply for judicial review.  According to Form 86 filed by the applicant, the decision proposed to be challenged is that of the Torture Claims Appeal Board (“the board”) dated 17 March 2017 (“the board’s decision”).

2.  The decision of the Director of Immigration (dated 18 September 2014) (“the Director’s decision”) dismissed the applicant’s non-refoulement claim whereas the board’s decision dismissed his appeal against the Director’s decision.

3.  The Director’s decision is not challenged in Form 86 or the supporting affirmation.

Background

4.  Form 86 and the supporting affirmation assert that the applicant “fled to Hong Kong” on 16 June 2006.  On that occasion, he was permitted by the Director of Immigration (“the Director”) to remain in Hong Kong as a visitor until 30 June 2006.

5.  The board’s decision recorded that:

(a)   the applicant is a native of Bangladesh aged 43 years (in March 2017);

(b)   after arriving in Hong Kong, the applicant went to the Mainland twice;

(c)   the applicant was last permitted to stay as a visitor until 30 July 2006 (but he did not depart after that date);

(d)   the applicant was arrested for a criminal offence in May 2008 and he lodged a torture claim on 24 June 2008.

Grounds of application

6.  The grounds in support of this application set out in Form 86 can be summarized as follows:

(1)   the board acted in a procedurally unfair way;

(2)   the board’s decision was unreasonable in that no reasonable tribunal properly directed could have decided in the way the board did;

(3)   the board failed to act with greater care when dealing with the applicant who acted in person.

7.  Form 86 complains that:

(a)   the hearing bundle was sent to the applicant only 5 business days before the hearing;

(b)   most of the documents in the hearing bundle (including the written submissions of the Director) were in English;

(c)   due to the short time available and the applicant’s language handicap, the applicant did not fully understand the hearing and was confused.

This application

8.  As stated in para 3 above, the applicant has not made any complaint against the Director’s decision in this application.  On the face of the record, there is nothing inadequate about the Director’s decision. It is therefore proper to infer that the Director’s decision was correctly made.

9.  The board’s decision is about 13 pages long (excluding the front page).  It was divided into the following headings:

(1)   background;

(2)   unified screening mechanism (“USM”);

(3)   claim refused (which essentially referred to the Director’s decision);

(4)   the hearing (that is, the hearing before the board);

(5)   the law (this heading was sub-divided into “persecution risk”, “BOR 3 [Hong Kong Bill of Rights] risk” and “torture risk”);

(6)   the applicant’s case (this heading was sub-divided into “attack on family home”, “1992-1996”, “1996-2001”, “joining Chhatra League”, “demands from BNP”, “false accusation against [the applicant]”, “joining Jubo League”, “2004-2005”, “bus from Nepal”, “in Hong Kong” and “current situation”);

(7)   discussion (this heading was sub-divided into “credibility of [the applicant]”, “hearsay and speculation” and “future risk”;

(8)   decision (this heading was sub-divided into “persecution risk”, “BOR 3 risk” and “torture risk”);

(9)   conclusion.

10.  A comparison of the Director’s decision and the board’s decision shows that the applicant’s case (as summarized in both documents) remained essentially the same.  There is therefore no material to show that the applicant has been disadvantaged at the hearing before the board so that:

(a)   the applicant has not been to properly advance his case before the board;

(b)   the board has misunderstood or omitted the applicant’s case (or any part of it).

(it is noted there is no complaint in Form 86 that there has been misunderstanding or omission on the part of the board, despite the applicant’s alleged lack of understanding and confusion)

11.  In relation to the board’s findings on the applicant’s credibility, first, the board’s decision recorded some of the verbal exchange between the board and the applicant (for example, para 16 to 20, 23 to 26, 28 to 34, 36 to 37, 40 to 41, 45 to 46 and 58 thereof).  Further, the board’s findings on credibility were based on reasons which were not wrong in principle or could amount to a misdirection or non-direction.

12.  In relation to the complaint that the board has acted unreasonably, the board’s decision was based in essence on (i) the rejection of the applicant’s case as being incredible, and (ii) the lack of credible documentary evidence.  Similarly, nothing untoward concerning the reasons given by the board about these matters can be found in the board’s decision.

13.  Apart from the matters set out in para 7 above (which have been dealt with above), no other facts relating to procedural unfairness have been set out in Form 86 or the applicant’s supporting affirmation.

14.  Looking at the whole of the board’s decision, there is no substance in the complaint set out in para 6(3) above.  The board’s decision is detailed and comprehensive, and there is no basis to suggest the board has not acted with care and attention, or it has ignored any important part of the applicant’s case.

Conclusion

15.  This application has not raised any matter which is reasonably arguable upon further consideration.  The application for leave is thus refused.

Other matters

16.  At the hearing of this application, the applicant sought an adjournment for him to seek legal aid assistance.  He also showed copy of a letter dated 21 September 2017 from the Legal Aid Department. The letter stated in gist that the applicant’s application for legal aid had been refused, and the applicant’s appeal against the refusal had been scheduled to be heard on 2 March 2018.

17.  Having considered the materials before me and having heard the applicant at the hearing of this application, I have decided to refuse the application to adjourn the hearing and proceeded to determine this application in the manner stated in this decision.  The reason why I so decided was that the matters complained of by the applicant in this application do not give rise to any valid basis for believing that he was at risk of either unfair treatment, or an unjust decision, by the board.