MOTAHAR HOSSEN ALIAS TITU ALIAS MONIR ALI ALIAS ALI MONIR v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL1717/2018

[2019] HKCFI 2190

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1717 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 (Order by Deputy High Court Judge K.W. Lung):

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. In 1996, he came to Hong Kong using another identity and was convicted of an offence. He was imprisoned and was deported on 17 September 1999. He came to Hong Kong as a visitor on 21 July 2014 and was allowed to stay until 5 August 2014. He overstayed without the Director’s permission. He surrendered to the Immigration Department on 4 September 2014. He lodged a non-refoulement claim on 15 October 2014.

3.  In his statements given to the Director and the Board, he said that if he returned to Bangladesh, he would be harmed or killed by his business suppliers or his political opponent. In 2000, he started a business of selling watches with his partner. The suppliers provided them with watches on credit. In 2012, his partner left, taking with him 10 million taka. He was unable to pay the suppliers. They went to his shop and his home and threatened that if he could not pay the credit, they would sell their home for repayment.

4.  He was also General Secretary of the Bangladesh Nationalist Party. He assisted the party in the election. But the Awami League won the election. After the election, the Awami League people went to vandalize his home. He reported the matter to police. They did not take any action. He went to live in his friend’s home in 2014. His friend advised him to come to Hong Kong. He took his friend’s advice.

The Director’s Decision

5.  The Director considered his application in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

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 under RC”).

6.  By Notice of Decision dated 27 October 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was rejected for the reasons that his claim was unsubstantiated.

The Board

7.  The applicant appealed to the Board and he attended a hearing before the Adjudicator on 28 February 2018.

8.  By Decision dated 6 July 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

9.  The Board, having considered the applicant’s evidence concluded that he was not a witness of truth and that he had fabricated claims in relation to the purported problems he had with his suppliers. The Board had inconsistencies in his evidence in relation to the facts below.

(1)  The time he began his business with his partner, Anwar [48].

(2)  When Anwar left with the money from the business [49].

(3)  What happened after Anwar allegedly ran off with the money from the business [50].

10.  The Board also did not accept that he was a member of BNP [54], or that he held the position of General Secretary for a period of some ten years [57]. It also did not accept that the applicant was threatened by AL leaders [59].

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

12.  In his affirmation in support of his application dated 22 August 2018, the applicant relied upon the following grounds:

(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 considered irrelevant facts or had failed to considered facts which were in favour of his case;

(8)  the Adjudicator had not done sufficient research in the Country of Origin Information (“COI”) and her knowledge was not updated;

(9)  the Adjudicator had relied upon hearsay information and outdated material in relation to COI;

(10)  the Adjudicator had cherry-picked and given undue weight on the irrelevant material, neglecting the materials favorable to his case;

(11)  the Adjudicator had not considered USHR 2010, USFR 2010 and The International Commission of Jurists (ICJ) “Report on the ICJ Mission to Pakistan” Autumn 2011, which is favorable to his case;

(12)  the Adjudicator failed to fulfil her obligation to obtain the requisite documents for her adjudication;

(13)  the Adjudicator was wrong in state protection in his country;

(14)  BOR 2 risk was assessed without screening;

(15)  the Adjudicator failed to call for psychological and psychiatric reports on the applicant; and

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

DISCUSSION

13.  The applicant appeared before me. He said that he did not attend the interview with the Immigration officer on 18 September 2017 because he was feeling unwell. He had a medical certificate, which he produced to the Immigration officer on 27 September 2017. But he was given a document with a list of questions. His lawyer assisted him to answer the questions, which he returned to the Immigration officer on 13 October 2017. The Director assessed his claim on the papers.

14.  However, he had told the Adjudicator that the Immigration officer had not convened another interview for him and he said that the Adjudicator was aware of that too.

15.  It seems that there was a procedural irregularity that the Immigration officer did not arrange another interview for him having been satisfied that he was unable to attend the original interview because of medical reason as supported by a medical certificate. However, this procedural irregularity was addressed and remedied by the fact that he had raised it with the Board and the Adjudicator told him that she was aware of it. She must have learned about it from the Director’s Decision, which was in the Hearing Bundle. This is ground, however, was not raised in his affirmation in support of his application.

16.  The court held in AM v Director of Immigration & Ors HCAL 69 of 2012 that the Board had the power to re-hear the case de novo.

17.  It is quite obvious that 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. Nevertheless, I shall deal with them.

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

19.  Grounds (4) to (14) are his opinions without evidence or particulars in support of them. They fail.

20.  Grounds (15) was not raised before the Board.

21.  The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] held that the applicant does not have an absolute right to free legal representation at all stages of the proceedings as he has already had the benefit of legal representation in presenting his case to the Director of Immigration. Ground (16) fails.

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