MD ABUL HASAN v. DIRECTOR OF IMMIGRATION

HCAL 53/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 53 OF 2013

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J U D G M E N T

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1. This is an application for leave to apply for judicial review against the decision of the Director of Immigration (hereinafter called the Director) and the Chairperson of the Torture Claim Appeal Board (hereinafter called the Chairperson and the Board respectively) to dismiss the claim of the Applicant made under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

2. In his Form 86[1] dated 2 February 2013, the Applicant only named the Director as the proposed Respondent.

3. However, from the relief sought as indicated in his Affirmation made on 28 February 2013, it is clear that it was the intention of the Applicant to include the Chairperson, whom he called the Adjudicator[2], in his application for leave to apply for judicial review. 

4. Having ascertained at the hearing that it is indeed the case, I consider at the same time whether leave should be granted for the Applicant to apply for judicial review against the decision of both the Director and the Chairperson.

BACKGROUND

5. The Applicant is a Bangladesh national now 40 years of age. 

6. He arrived in Hong Kong on 16 March 2006 and was allowed to stay as a visitor until 30 March 2006. 

7. He overstayed in Hong Kong until his arrest on 26 July 2006.

8. He raised his torture claim on 31 July 2006, claiming that he would be at risk of torture if he is refouled to Bangladesh.

9. In October 2010 he requested to withdraw the torture claim but soon requested to re-open the claim again.

10. By a Notice of Decision dated 4 January 2013, the Director of Immigration refused his torture claim.

11. The Applicant appealed against that decision pursuant to s37NI(1)(b) of the Immigration Ordinance[3] (hereinafter called the Ordinance).

12. His appeal was dismissed without a hearing.  In her Decision dated 21 February 2013, the Chairperson concluded that the Applicant had failed to show any, or any substantial grounds for believing that there is a foreseeable, real and personal risk that he would face torture if he is refouled to his country.

ALLEGATIONS MADE BY THE APPLICANT

13. In his Affirmation affirmed on 28 February 2013, the Applicant stated the followings :

1.  If he returns to his country he will face cruelty from his opponent party or enemy;

2.  He was involved in political activities in his country.  He had been a member of Jamaat-e-Islam (the “JI”) Student Wing Islami Chatra Shibin from 1988 to 1992 and became a member of JI in 1993;

3.  The JI is a right wing party, with the target of making a Islamic Democrate Country of Bangladesh.  It has relations with organizations like Jamitul Mujahidden Bangladesh, Harkat Islami, and Taheric Islami, etc.;

4.  The JI tried to encourage young people, namely the Islami Chatra Shibin to politics and also back terrorist activities;

5.  After he left JI, it became enemy of him.  They tried to kill him.

6.  JI involves in a lot of terrorist activities, both against the government and the people.

14. He stated that it is a travesty of justice and contrary to natural law, as well as the spirit of common humanity and brotherhood to refuse his CAT claim and evict him out of Hong Kong.

15. He also stated that the Board dismissed his appeal without any oral hearing.[4]

RELIEF SOUGHT

16. The Applicant seeks the following relief :

1.  an Order of Certiorari to bring up and quash the said determination of the Director of Immigration;

2.  an Order of Certiorari to bring up and quash the said decision of the Adjudicator, (the Chairperson of the Torture Claim Board);

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

4.  such further or other remedy, relief or order as may be just and expedient in the circumstances.

SUBMISSION

The Applicant

17. At the hearing, the Applicant appeared in person.  He stressed that there were widespread terrorist activities in Bangladesh and he was a victim of such activities.  He said the situation in Bangladesh is extremely bad and a civil war has almost started.  In the light of the current situation, if he is refouled to Bangladesh, he fears he cannot be alive for even a day. 

18. He confirmed that he had no further document to produce in support of his case. 

19. He explained he had included some pictures in press cuttings to show violent acts against not even civilians but also police.  He submitted that if the police is not able to protect themselves, it is doubtful that they can protect citizens.

THE PUTATIVE RESPONDENT

20. As the Applicant had only named the Director as the putative respondent, Ms Jenny Cheung, Senior Government Counsel, only acted for the Director.  Her submission, however, covers the Chairperson.

21. The gist of Ms Cheung’s submission is :

Lack of oral hearing

1.  Notwithstanding that a torture claim, including the subsequent appeal arising therefrom, must be determined in accordance with high standards of fairness, the claimant does not enjoy an absolute right to oral hearing[5].

2.  The Applicant failed to discharge his duty in justifying the need for an oral hearing in the circumstances of the present case.

3.  An oral hearing was, in any case, not necessary in the circumstances as :

a.  The Applicant’s torture claim was not rejected by the Director on assessment of his credibility, the claim was rejected primarily on the following basis:

i.  Taking the claim as its highest, the alleged threat and attacks did not amount to ‘torture’ as defined in Section 37U(1) of the Ordinance; and

ii.  Even assuming that the claim was credible, the assessment was that the claimant was not subjected to any real risk of torture if he is returned to Bangladesh.

b.  Likewise, the Board dismissed the Applicant’s appeal on the grounds that his claim did not fulfill the elements of torture and he failed to show that he was personally at risk of torture.

c.   There was no apparent breach of procedural requirements which might have limited the ability of the Applicant to establish his claim, during the 1^st tier screening by the Director.  In any event, no such complaint was made by the Applicant in his Notice of Appeal.

d.  There is no new evidence submitted by the Applicant in this appeal.

4.  The Applicant has not demonstrated why there was a need for an oral hearing in the present case or otherwise pointed to any prejudice that he has suffered as a result of the lack of an oral hearing.

Decisions of the Director and the Board

1.  The claim was carefully considered by the Director.

2.  The Chairperson had directed herself correctly regarding the applicable law.  The Applicant’s case had been thoroughly assessed by the Chairperson by reference to the applicable laws and principles.

3.  There is nothing to suggest that in determining the Applicant’s appeal, the Board had committed any error of law or adopted any procedures which failed to meet the high standards of fairness or in any way rendered its decision Wednesbury[6]unreasonable.

Exhibits attached to the Applicant’s Affirmation

1.  Exhibits marked as SD (V) to (XI) have not been placed before the Director or the Board for consideration.

2.  The Applicant failed to elaborate how these further materials are relevant to the present proceedings.

3.  The further materials provide no more than general country information and do not affect the substance of the decisions of the Director and the Board that the Applicant failed to show that he was personally at risk of torture.

CONCLUSION

22. I have considered the content in the Form 86 and the material filed by the Applicant, as well as submission from both parties, and perused the content and related papers in the Notice of Decision of the Director and the Decision of the Chairperson.

23. The Director, and in particular the Chairperson, have correctly directed themselves on the relevant legal principles and had regard to all relevant considerations.  The Applicant has not persuaded me that the decisions can be argued as unreasonable in the Wednesbury sense.  Nor has he persuaded me that there is any reasonably arguable ground that the decisions should be quashed on any public law reason.

24. In my judgment, the Applicant failed to show that his grounds of judicial review are reasonably arguable with a realistic prospect of success[7].

25. The application for leave to apply for judicial review is therefore refused.