DIL ISLAM HOWLADER v. IAN CANDY, THE ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL1185/2018

[2019] HKCFI 949

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1185 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

(1)  An extension of time for the application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board dated 5 October 2015 be refused; and

(2)  Leave to apply for judicial review be dismissed.

It is further directed that:

(1)  If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)  When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)  The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)  If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)  Liberty to apply.

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 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 the interested party.

The applicant

2.  The applicant is a Bangladeshi national. He came to Hong Kong illegally on 4 February 2007 and he was arrested by police on 11 February 2007. On 15 February 2007, he was referred to the Immigration Department for investigation. On 2 March 2009, he made the non-refoulement claim.

3.  He claimed that if he was repatriated back to Bangladesh, he would be extorted, ill-treated or killed by Jalal, Jamal and Janghir (“JJJ”) because his family had a land dispute with them.

4.  In his statements given to the Director and the Board, he said that his father owned a piece of farmland and JJJ were their neighbour. In early 2006, his father told him that JJJ had demanded him transfer the land to them. His father refused to do so. On this occasion, they did not hurt his father physically. They only threatened him with death. One evening in late 2006, five or six people wearing masks came to his father’s home. He came back and saw them pushing his father. He intervened, but was beaten by those people with sticks for some 15 minutes. He was unconscious, only found himself in the hospital when he came round. His father told him that his brother who was also there and beaten by those people had suffered injury and died because of the injury. He left home and moved to other places. His father advised him to leave Bangladesh. He took the advice and went to China, from where he came to Hong Kong.

The Director’s Decisions

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 5 December 2014 (“the Director’s Decision”) and Notice of Further Decision dated 26 January 2017 (“the Director’s Further Decision”), collectively called “the Director’s Decisions”, the Director refused his application for the reason that his non-refoulement claim was not substantiated.

The Board

7.  The applicant appealed to the Board on the Director’s Decision. He did not appeal to the Board on the Director’s Further Decision. On 28 April 2015 and 13 May 2015 respectively, he attended before the Adjudicator.

8.  The Adjudicator had considered the applicant’s evidence. He came to a conclusion on the facts of the case. He disbelieved the story of the applicant that his brother was killed by the JJJ and their people, that his father had transferred the ownership of the land to him and his sister. At paragraph 44 of the Board’s Decision, the Adjudicator said:

“On the totality of the evidence, I am not persuaded, even to the low standard applicable, that the Claimant faces a real risk of serious harm if he is refouled to Bangladesh.”

9.  By Decision dated 5 October 2015 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

Application for leave for judicial review

10.  By Form 86 dated 25 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 Board’s Decision, with the Director as the interested party.

11.  In his affirmation in support of his application dated 25 June 2018, the applicant set out his reasons in a 22-page narrative. I shall summarize the specific grounds 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 Adjudicator was unfair and he 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 risk of torture in future;

(6)  the Adjudicator had not done sufficient research in the Country of Origin Information and his knowledge was not updated;

(7)  the Adjudicator had relied upon hearsay information and outdated material in relation to Country of Origin Information;

(8)  the Adjudicator had given undue weight on the irrelevant material;

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

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

(11)  the applicant was not legally represented at the appeal hearing.

DISCUSSION

12.  Upon his request, the applicant appeared before me. He confirmed that he had no complaint against the Immigration officer, the interpreters and the Adjudicator respectively. He was simply not satisfied that his claim was rejected. Those grounds above were prepared by his friend. However, his application is out of time, the Board’s Decision being dated 5 October 2015. The applicant has not taken out an application for extension of time. I have to consider whether time should be extended. Having considered the merits of the case, I refuse to grant him the extension of time. My reasons follow.

13.  It is obvious that the Board had turned down the applicant’s appeal because the Adjudicator did not believe the applicant’s story. The applicant therefore has no factual basis in support of his claim.

14.  Grounds (1) to (4), (6) and (9) are either irrelevant or they are just the applicant’s opinion or comment, unsubstantiated by any evidence.

15.  As to ground (5), the Adjudicator was entitled to consider the past experience to assess the possibility of future torture. This ground fails.

16.  As to the allegation that the Board had relied on the source of news which was not officially recognized or it is simply hearsay, under section 18 of Schedule 1A of the Ordinance, the Board may consider the same evidence that was before the immigration officer^[1]. The Director is entitled to consider any relevant materials for the investigation under section 37ZB of the Immigration Ordinance (“the Ordinance”)^[2]. The Director had considered the relevant reports in relation to the Country of Origin Information. They are recognized information for assessment of the risks as raised by the applicant in the legal proceedings. The Court of Final Appeal had also relied upon The Handbook (United Nations High Commission for Refugees) in its Judgment in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187^[3]. The applicant has not set out any reason why he considers that the information is unreliable. The Adjudicator was entitled to decide what evidence should be admitted and considered for the assessment of the applicant’s case. Grounds (7) and (8) fail.

17.  The applicant had not raised the issue of his mental capacity or problem at the hearing. He cannot complain that the Adjudicator had not called for the psychological or the psychiatric report. Ground (10) fails.

18.  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.” Ground (11) fails too.

19.  The applicant failed to show that his proposed judicial review has any reasonable chance of success.

CONCLUSION

20.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him extension of time for his application for leave for 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