TAROK DAS ALIAS TAROK CHANDRA DAS v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2621/2018

[2019] HKCFI 2751

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2621 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.

The applicant

2.  The applicant is a Bangladeshi national. He arrived in Hong Kong on 8 March 2005 as a visitor. He was permitted to stay until 22 March 2005. He overstayed and was arrested by police on 29 November 2011. He was referred to the Immigration Department for further investigation. On 1 December 2011, he lodged a torture claim.

3.  In his statements given to the Director and the Board, he said that if refouled, he would be harmed or killed by the people from the Awami League (“AL”) in his locality and the Muslim community. He was a Hindu and a member of the Bangladesh Nationalist Party (“BNP”). In the area where he lived, there were 70% of the people who were supporters of the AL; 30 % were supporter of BNP. He was always bullied by the AL members. In 2004, the AL supporters asked him to join AL and when he refused, they assaulted him with wooden sticks. He was hit from behind and he fell unconscious.

The Director’s Decisions

4.  The applicant had made torture claim before but failed, the Director considered his application in relation to the following risks:

a.     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”);

b.     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

c.     risk of persecution by 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”).

5.  By Notice of Decision dated 26 November 2015 and Notice of Further Decision dated 6 July 2017, collectively called “the Director’s Decisions”, the Director refused his claim for the reason that his claim was unsubstantiated.

The Board’s Decision

6.  The applicant appealed to the Board and he attended a hearing before the Adjudicator on 10 May 2018.

7.  By Decision dated 8 November 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decisions.

8.  The Board considered the applicant’s case and, having considered his evidence, it concluded:

“45. The general credibility of the Claimant is questionable. His evidence of involvement with the BNP is vague and generalised…

46. The Claimant’s assertions that he suffered personal verbal and physical abuse at the hands of AL member is also vague and generalized ….

47. On the Claimant’s own evidence, he was only a part-time local volunteer worker for the BNP at election time....

48. The Claimant failed to submit a Questionnaire to support his torture claim and his explanation for the failure lack credibility…

52. The fact that the Claimant did not lodge a torture claim for more than 6 years after he became an overstayer in Hong Kong also damages his general credibility. His evidence that he did not become aware that he could do so until after he had been arrested and detained is inherently incredible and unrealistic, given his evidence that he associated with other Bangladeshis in Hong Kong who were themselves asylum seekers.”

9.  In his Form 86, the applicant applied for leave to apply for judicial review of the Board’s Decision.

10.  In his affirmation in support of his application dated 21 November 2018, the applicant relied upon a written submission, a copybook of other similar cases with stultifying and discursive facts, irrelevant materials and grounds, which I shall summarize 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 not done sufficient research in the Country of Origin Information (“COI”) and her knowledge was not updated;

8.     the Adjudicator had relied upon hearsay information and outdated material in relation to COI;

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

10.     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;

11.     the Adjudicator failed to fulfil his obligation to obtain the requisite documents for his adjudication;

12.     the Adjudicator was wrong in state protection in his country;

13.     the Adjudicator failed to call for psychological and psychiatric reports on the applicant;

14.     the applicant was not legally represented before the Board, which was in breach of procedural fairness.

15.     the Director had not screened the BOR 2 risk; and

16.     the Director or the Board had not conducted proper enquiry into his situation and their decisions were wrong.

DISCUSSION

The Board’s Decision

11.  The applicant appeared before me. He confirmed that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. He also confirmed that he understood the Director’s Decision as his lawyer had explained to him. His friend had assisted him with the Hearing Bundle and the Board’s Decision.

12.  I explained the Board’s findings above to him and asked if he had any comments. He said that he had no comments on them.

13.  It is quite obvious that, apart from some fundamental facts such as his nationality, the Board did not accept the facts as stated by the applicant in support of his claim. Therefore, the applicant had no factual basis for his claim. Those grounds above are quite irrelevant.

14.  The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42].

15.  The Court of Appeal in  Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.  We do not find anything amiss arising from lack of legal representation in the process before the Board.”

16.  Grounds (1) to (3) fail as they are inconsistent with what the applicant said before this Court.

17.  Grounds (4) to (9), (11), (12) and (16) are his opinions without any evidence in support of them. They fail.

18.  Ground (10) fails as he did not refer those materials to the Adjudicator at the appeal hearing. They were not mentioned in the Board’s Decision. The applicant was unable to specify why those materials would support his claim.

19.  Ground (13) fails because the applicant had not even raised this issue with the Board.

20.  Ground (14) fails in view of the above authority.

21.  Ground (15) is not true. The Director had sent his Further Decision to him.

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

CONCLUSION

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