HOSAIN SAIDUL v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL2462/2018

[2019] HKCFI 2258

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2462 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. He arrived in Hong Kong on 21 December 2015 and was arrested by police on the same day. On 23 December 2015, he was referred to the Immigration Department for investigation. On 24 December 2015, he raised a non-refoulement claim.

3.  In his statements given to the Director and the Board, he said that his father was a Bangladesh Nationalist Party (“BNP”) supporter. After election, the Awarmi League (“AL”) won the election. His father left home and hid himself up from the AL people. He told the applicant that the Al people had framed up a case against the family. The family then moved to Mirpur where they found the Al people followingthem. The AL was the ruling party. The AL people committed crimes and they would not spare the opposite party people. His family was unable to come to Hong Kong and they had to seek refuge from other family members such as his brother in Bangladesh. The Bangladeshi government was incapable and corruptive. It would not be able to provide him with state protection. Internal location was also not possible as the AL had wide network of connection all over Bangladesh. Upon the advice of his mother, he came to Hong Kong.

The Director’s Decision

4.  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”).

5.  By Notice of Decision dated 23 January 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was rejected for the reason that his claim was unsubstantiated.

The Board

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

7.  By Decision dated 10 October 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

8.  The Board considered the applicant’s case and, having considered the inconsistencies between his evidence given to the Director and to the Board and the inherent implausibility of his evidence [64-75], it concluded:

“63. … …The Board is unable to accept any of the claims made by the applicant. That is, the Board does not accept that the applicant’s father was involved in the BNP; that members of the Awami League visited the applicant’s house and then pursued him once they moved to Mirpur, and/or that the applicant is of interest to the Awami League or anyone else in Bangladesh…,

82.     … …the Board does not accept that the applicant fears persecution, or that he had a well-founded fear of persecution. This is because, as noted above, the Board has not accepted any of the applicant’s claims regarding his father’s involvement with the BNP and/or the AL having any interest in the applicant’s family and/or the applicant. …”

9.  In his Form 86 and submission annexed to Form 86 dated 5 November 2018 under Order 53 rule 3(2) of the RHC, the applicant applied for leave for judicial review of the Board’s Decision.

10.  In his affirmation in support of his application dated 5 November 2018, the applicant relied upon a written submission, 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 herself 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 her obligation to obtain the requisite documents for her adjudication;

(12)  the Adjudicator was wrong in issue of state protection in his country;

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

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

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 the 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) and (12) 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.

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

22.  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