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HCAL 1696/2018
[2020] HKCFI 115
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1696 of 2018
BETWEEN
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Halan Sheikh |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and
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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
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 26 January 2013 through China and was arrested by police on 29 January 2013. On 30 January 2013, he was referred to the Immigration Department for investigation. On 3 March 2014, he raised a non-refoulement claim.
3. He claimed that if refouled, his life would be in danger.
4. He joined the Bangladesh Nationalist Party (“BNP”) as an ordinary member. He inherited a piece of land in Arial Bazar. Adjacent to it was another piece of land owned by Daktar, who was President of the Panchgaon Union Committee of the Awami League, a very rich and influential person in that locality. Daktar demanded his land transferred to him. He asked for market price. Daktar refused to pay anything and threatened to kill him if he refused to do so. He reported to police, who did not assist him as Daktar’s son was an inspector there. Daktar went to his home together with his son, who showed him a rifle. They asked him to be careful if he did not transfer the land to them. They sent 6 or 7 people to the land and guarded it. The next day, he went to the land and found that it was fenced. He asked the people there. They assaulted him with a crowbar. They also kicked, slapped and punched him. He had to stayed in hospital for two weeks. He recovered and ran to his friend’s place in Dhaka where he stayed for 2 to 3 months. However, he was located and Dhaka came to his house to demand transfer of the land to him every day. Then he returned home. Dakar also followed him there and demand transfer of the land to him. He disagreed. He was assaulted and slapped on the face. It got swollen. His father sought advice from a BNP member, Harun, who advised him leave the country. He decided to leave his country. He fled to a jungle where he stayed for 2 months. With the assistance of an agent, he left Bangladesh for China.
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 21 August 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was unsubstantiated.
The Board’s Decision
7. The applicant appealed to the Board and he attended a hearing before the Adjudicator on 3 April 2018.
8. By Decision dated 6 August 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.
9. The Board considered the applicant’s case and found the facts below.
1. It did not accept that the applicant had joined BNP as an ordinary member.
2. Daktar disliked him because of his BNP membership.
3. The applicant’s father had sought Harun’s advice for his departure from Bangladesh.
4. Daktar and his people would be able to locate him within one or two months even if he were to move to Barisal and Dhaka. [115]
5. There is no risk that the applicant and his father would be killed. [142]
6. The applicant had not been able to show that Bangladesh is unable to provide protection for him. [146]
7. The state was no involved. [154]
8. The experiences and physical attacks described by the applicant do not constitute the severity and arbitrariness required for CIDTP. [165]
9. There is no real risk that the applicant is subjected to persecution within the context of the Convention. [187]
10. Internal relocation is a possible option for the applicant. [186]
11. The applicant does not qualify for BOR 2 risk protection. [199]
Application for leave to apply for Judicial Review
10. In his Form 86, the applicant applied for leave to apply for judicial review of the Board’s Decision.
11. The applicant relied upon a written submission attached to Form 86, on the general grounds of misdirect in the law, procedural impropriety or unfairness and irrationality which I shall particularize 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 his 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 BOR 2 risk was not screened; and
14. the applicant was not legally represented before the Board, which was in breach of procedural fairness.
DISCUSSION
The Board’s Decision
12. 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.
13. I explained the Board’s findings above to him and asked if he had any comments. He said that he had no comments.
14. On those facts the Board accepted, the Adjudicator has applied the relevant statutory provisions and the Convention to them and reached his conclusions accordingly.
15. The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact are for the Adjudicator [42]. There is nothing to upset its findings.
16. The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 held that the applicant does not have the absolute right of free legal representation at every stage of the proceedings as he had already been provided with legal representation at the screening stage.
17. Grounds (1) to (3) fail as they are inconsistent with what the applicant said before this Court.
18. Grounds (4) to (9), (11) and (12) are his opinions without any evidence in support of them. They fail.
19. 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.
20. Ground (13) fails because the applicant had not even raised this issue with the Board.
21. Ground (14) fails in view of the Court of Appeal decisions.
22. The applicant fails to show that he has a reasonable prospect 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 intended judicial review. Accordingly, I dismiss his application.
Dated the 7th day of January 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 7/1/2020
Halan Sheikh
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 7/1/2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8351/17/9/23/B955
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1608/17 (formerly RBCZ 3000048/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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