HCAL1151/2018
[2019] HKCFI 397
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1151 of 2018
BETWEEN
Alam Mohammad Masud
Applicant
and
Alexandra Lo, the Adjudicator of the
Putative
and
Director of Immigration
Putative
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 (Order by Deputy High Court Judge K.W. Lung):
THE APPLICATION
1. This is the applicant’s application for leave for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board ”) with the Director of Immigration (“the Director ”) as the interested party.
The applicant
2. The applicant is a Bangladeshi national. He came to Hong Kong through China illegally on 20 March 2014. He was arrested by police on the same day. On 21 March 2014, he was referred to the Immigration Department for investigation. On 22 March 2014, he lodged his non-refoulement claim.
3. He claimed that if he was repatriated to Bangladesh, he would be harmed or killed by the members of the Awami League (“AL”).
4. In his statements given to the Director and the Board, the applicant said that he was a popular figure in the Bangladesh Nationalist Party (“BNP”). So throughout 2013 to 2014, the AL people tried hard to recruit him to join them. He refused. In early 2014, he was kidnapped him from his home and took him to a deserted place where he was beaten up seriously. He fell unconscious. When he came round, he found himself in a hospital where he had to stay for two months. He did not report this matter to police because he knew that AL was powerful at the time. He moved around places to avoid the AL people. Finally, he came to Hong Kong.
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. 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 16 June 2017, the Director refused his application on the ground that he failed to substantiate his claim.
The Board
7. The applicant appealed to the Board. He had attended a hearing before the Adjudicator on 26 February 2018.
8. The Adjudicator of the Board had a re-hearing de novo of his case. She had also given the applicant the opportunity to answer her questions in relation to the incidents the applicant stated in his statement.
9. Having considered his evidence, the Adjudicator refused his appeal and confirmed the Director’s Decision by the Board’s Decision dated 15 June 2018 (“the Board’s Decision ”).
10. The Adjudicator found that:
(a) the applicant had forged a document, which damaged his credibility [37];
(b) she rejected the applicant’s claim that he may face any real risk from the AL supporters resulting from his BNP membership and his refusal to join AL [60 & 61];
(c) there was no state involvement in this case [62, 63 & 66];
(d) there was no evidence that the applicant had suffered physical and/or mental suffering of the requisite severity [64];
(e) there will be state protection in Bangladesh [67]; and
(f) she would not accept that the applicant is unwilling to return to Bangladesh because of a well-founded fear for any Convention grounds [69].
Application for leave for judicial review
11. By Form 86 dated 20 June 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the decision of the Adjudicator of the Board.
12. In his affirmation in support of his application dated on 20 June 2018, he set out the reasons in support of his application in a narrative form of 22 pages. I shall summarize his specific grounds below:
(1) the Adjudicator was in breach of procedural fairness;
(2) the Adjudicator was misdirected by considering that the applicant had to have experienced torture in the past in order to establish substantial grounds to believe that here was a risk of torture in the future;
(3) the Adjudicator had not carried sufficient research into the Country of Origin Information to update the situation;
(4) the Board had relied upon hearsay and outdated material in relation to the Country of Origin Information;
(5) the Adjudicator misunderstood the law on the extended meaning of state protection;
(6) the Adjudicator had taken into account of irrelevant material and failed to take into account of relevant material;
(7) the Adjudicator failed to call for psychological and psychiatric evaluation reports;
(8) the Adjudicator had applied the incorrect standard of proof;
(9) there was no legal representation for the appeal;
(10) the Adjudicator had not considered (a) USHR 2010, USRF 2010 and The International Commission of Jurists (ICJ) “Report on the ICJ Mission to Bangladesh” Autumn 2011;
(11) the hearing bundle was delivered to the applicant shortly before the appeal hearing and the contents were in English without translation; and
(12) the applicant did not have sufficient time to prepare for the appeal hearing.
DISCUSSION
The Board’s Decision
13. The applicant appeared before me on 13 December 2018.
14. At the hearing, the applicant confirmed that the above grounds of appeal were not prepared by himself. His friend prepared them for him. He did not understand many of the grounds himself. But he trusted his friend.
15. He confirmed that procedurally, he had no complaint against the Immigration officer, the interpreter or the Adjudicator. He was only unhappy because the Director and the Adjudicator had turned down his application. He did not raise any issue of psychological or psychiatric problems at the screening or the appeal hearing.
16. The burden is on the applicant to set out the grounds in support of his application, such grounds have to bear substance, not just “putting forward a bare and flimsy assertion” Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29.
17. Grounds (1), (3) to (6) and (8) are opinions or comments without evidence in support. They are unsubstantiated allegations only.
18. As to ground (2), the Adjudicator is entitled to consider factors that support the applicant’s statement that he would be tortured if repatriated. She had considered the applicant’s past experience as the factor. If the applicant had experienced torture before, the likelihood of receiving the same ill-treatment will be higher. Otherwise, the Adjudicator may take the view that the applicant’s allegation of future torturing is only his speculation.
19. As to ground (7), (11) and (12), the applicant had refuted those allegations in his answers to my questions in the court.
20. As to ground (9), 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.” This ground fails.
21. As to Ground (10), the applicant said that he did not understand this authority himself and he had not raised it before the Director or the Adjudicator. Again, this ground fails.
22. I find that the applicant is unable to show that his proposed judicial review will have reasonable chance of success.
CONCLUSION
23. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the proposed judicial review. Accordingly, I dismiss his application.
Dated the 22nd day of February 2019
(Alan Ngan)
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:
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)).
Sent to the Applicant on 22/2/2019Alam Mohammad Masud
Applicant’s ref. no:
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 22/2/2019
Alexandra Lo, the Adjudicator of the
Director of Immigration
Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)
Form CALL-1