MOHAMMAD TITU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL724/2017

[2018] HKCFI 1584

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 724 of 2017

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

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 first came to Hong Kong on 31 October 2004 and was permitted to remain for 14 days.  He then travelled back and forth between China and Hong Kong and last entered Hong Kong on 28 December 2004.  He was permitted to remain as a visitor until 30 December 2004 but did not depart and overstayed until he was arrested by the police on 19 March 2009.  After his arrest he lodged a torture claim which later was taken to be a non-refoulement protection claim and dismissed by the Director of Immigration (“the Director”) on 20 January 2015.  That claim included three applicable grounds of risk; torture, persecution and BOR 3. The applicant lodged an appeal/petition on 5 February 2015 which was dismissed by the Torture Claims Appeal Board (“TCAB”) after an oral hearing on 5 December 2016.  The applicant did not seek leave to apply for judicial review of that determination.

2.  The Director decided on his own initiative to consider a fourth ground of risk under BOR 2 and wrote to the applicant to invite him to submit further information for consideration. On 11 January 2017 the applicant submitted further information by letter.  By way of a Notice of Further Decision dated 30 March 2017 the Director dismissed the applicant’s BOR 2 risk claim.  The applicant lodged an appeal/petition to the TCAB on 20 March 2017.

3.  The TCAB determined the appeal/petition without a hearing pursuant to Section 12 of Schedule 1A of the Immigration Ordinance Cap. 115 and rejected the appeal/petition on 25 August 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 6 October 2017 and requested an oral hearing; he appeared in person on 2 March 2018 having had his application for legal aid refused.

4.  This application only concerns his BOR 2 risk claim determination.  Both the Director and the adjudicator of the TCAB set out the provisions of BOR 2.  The Director considered the applicant’s letter of 11 January 2017 and found it contained no new additional material or facts that would support a BOR 2 risk claim.  The letter gives details of an attack on the applicant’s wife and son in March 2016 by AL members who demanded protection money from her.  When she refused to pay, her son was beaten unconscious and she was beaten with sticks.  The police then demanded a bribe from his wife to deal with a complaint.  Four months later, the applicant’s wife was beaten unconscious until she is now paralysed down her left side of her body because she tried to prevent and failed to stop the AL members taking over her farm land, destroying her crops and building the AL party office on the land.

5.  The Director found the applicant had failed to establish with those facts, a personal and real risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights being violated if he returned home to Bangladesh.  He found the facts of the applicant’s case clearly did not engage the provisions of Article 2, in relation to death sentences and genocide and he had failed to establish a personal and real risk of being deprived of his life.

6.  The adjudicator treated the appeal as a rehearing.  However, an oral hearing is not an automatic right.  He found there to be no need for further questions as all had been addressed previously.  He found no advantage in holding an oral hearing.  He took into account the applicant had been given an opportunity by the Director to provide further material and submissions and he had written to the TCAB in the notice of appeal/petition and put forward his grounds.  The adjudicator criticised the Director but had not provided any further materials or evidence to support a BOR 2 risk.  His case was clear and the same as it was previously.  The adjudicator could see neither a need nor the justification to organise yet another oral hearing merely to recanvass exactly the same case as had already been dealt with and disposed of previously.  Therefore, the adjudicator was of the view that the appeal could be dealt with by way of a paper review.

7.  Like the Director, the adjudicator set out Article 2 and said he had considered the applicant’s case and the reasons given in the previous TCAB decision which were applicable to the rehearing.  He also found the applicant could not succeed in establishing a case under BOR 2.  The adjudicator confirmed the decision of the Director.

8.  Upon a reading of the papers, it is clear it was never the applicant’s case that he would be arbitrarily deprived of life in Bangladesh, have the death penalty imposed on him, be subject to genocide or otherwise be deprived of his rights under BOR 2.

Leave to apply for judicial review

9.  I have to consider with rigourous examination and anxious scrutiny the papers and grounds of this application.  The applicant’s supporting affirmation requires deciphering and with some difficulty, but it would appear that he sets out the following grounds for seeking leave;

a.  failure to conduct sufficient enquiry into Country of Origin information after new information to support a BOR 2 claim is provided;

b.  failure to conduct a screening interview for a BOR 2 claim; and

c.  failure to conduct an oral appeal hearing.

10.  In the applicant’s first ground he criticises a lack of analysis of Country of Origin information and cherry picking of that information as well as a failure to provide him with an opportunity to provide information.  However, these new facts that relate to his wife and child do not relate to him personally nor do they relate to a BOR 2 risk; they would not invoke the protection of BOR 2.  Death sentences imposed, crimes of genocide or a failure by the police or a public authority to know a life is in danger yet fail to take measures to protect is what is envisaged to invoke such protection.  There is no merit in this ground.

11.  The applicant’s second and third ground is also without merit.  Although it is never a decision to be taken lightly, I agree with the adjudicator that in this case an oral hearing could be dispensed with and the necessary high standard of fairness could still be maintained.  There was no necessity for the Director to interview the applicant again either.  When the Director and the adjudicator dealt with the torture, BOR 3 and persecution risk claims there were interviews, oral hearings and the applicant was legally represented before the Director.  With the BOR 2 risk claim the applicant did respond to an invitation to submit further information to the Director and clearly the adjudicator took the view and considered overall fairness when he decided the applicant would have nothing useful to contribute by way of being heard again if there was a hearing.

12.  I do not find any ground that shows there was an error 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 did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

13.  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.

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