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HCAL 2421/2018
[2020] HKCFI 821
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2421 of 2018
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Ahmed Polash |
Applicant |
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Torture Claims Appeal Board/ |
Putative Respondent |
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Non-refoulement Claims Petition Office |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
The applicant
1. The applicant is a Bangladeshi national. He came to Hong Kong by boat on 21 December 2015 illegally from China. He surrendered to the Immigration Department the next day. On 15 April 2016, he lodged a non-refoulement claim.
2. He claimed that if refouled, he would be killed by a district president, Ataur Rahman Selim of the Awami League (“AL”). He also said that he would be killed by member of the AL because he had taken part in some of the rallies held by the Bangladesh Nationalist Party against the AL.
3. There were two rallies, one in 2012 where there were about 500 in protest of the kidnap of their Organization Secretary and another in 2014 where AL had become the ruling party of Bangladesh. On both occasions, he took part and confronted the police. He was not hurt and managed to escape when other members were hurt. In another rally in 2014 for the release of the municipal mayor of Habiganj City arrested for the alleged killing of the former financial minister in around 2001-2003, he took part and was affected by the tear-gas. He ran home. He was not on the warrant list whilst other member were.
4. His neighbour Ataur Rahman Selim (“Selim”) of the AL had started to threaten him for not converting to AL since 2012. Selim had approached him and said “I would kidnap you or I’ll make you disappear.” He moved to other places in order to avoid Selim. He decided to come to Hong Kong.
The Director’s Decision
5. The Director considered his application in relation to the following risks:
a. torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);
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. 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”).
6. By Notice of Decision dated 27 September 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.
The Board’s Decision
7. The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 25 June 2018.
8. By Decision dated 25 October 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.
9. The Board considered the applicant’s evidence. It seemed that the Board accepted his evidence but found that his claims were only lame excuses. The Board found the facts below.
a. In the two rallies in 2012 and 2014 where the applicant had taken part, he was neither hurt nor arrested. His name was not on the wanted list of police. They were therefore just red herrings [21].
b. Selim’s threats were empty threats as he was not hurt by Selim between 2012 and 2014 and he admitted that he was scared by Selim to join the Jubo League in which Selim as the president [21 (iv)].
c. State protection is available to him in Bangladesh [25].
d. It would not be harsh for him to relocate himself to other cities like Dhaka and Chittagong to avoid any threats from Selim [41 & 42].
Application for leave to apply for judicial review
10. He filed Form 86 dated 31 October 2018 for leave to apply for judicial review of the Board’s Decision.
11. In his affirmation in support of his application, he relied upon the ground below:
(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 fact that the Board did not believe his evidence as because of the poor arrangement of the hearing bundle.
DISCUSSION
12. The applicant appeared before me. He confirmed that he was free to tell his stories before the Immigration officer and the Adjudicator. His lawyer had explained the Director’s Decision to him. His friend had explained the Board’s Decision to him.
13. It is obvious that the Board had accepted his facts, but found that they were only lame excuses for his claim. It applied the relevant statutory provisions and the Convention to the facts and came to its conclusion that he did not have the real risk of harm or torture as he claimed.
14. The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 held:
“14. The Director and the Board alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.”
15. 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.
16. He has confirmed that he had no problem with the hearing bundle for the appeal as his friend had explained it to him. All grounds fail.
17. The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.
CONCLUSION
18. Since the applicant’s application for 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.
Dated the 15th day of May 2020
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(Mike Mak) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 15/5/2020
Ahmed Polash
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 15/5/2020
Torture Claims Appeal Board/ Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8793/17/10/123/B1014
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1845/17(formerly RBCZ 11534/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
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Form CALL-1
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