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

HCAL 2457/2018

[2020] HKCFI 722

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2457 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:

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 27 October 2015 illegally through China. He was arrested on the same day by police and was referred to the Immigration Department for investigation. He lodged his non-refoulement claim by written representation on 31 October 2015.

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 members of the Awami League Party (“AL”) because he was a leader of the Bangladeshi Nationalist Party (“BNP”) in his village. He became a leader of BNP of his village in 1995. He was able to organize a group of over 100 people for public events. In 2007, he rented a shop in Narayangonj and started his garment business. In early 2014, the relation between BNP and AL was getting intense. The AL was the ruling party. In January 2014, the government commissioned construction of a new airport on Arial Beel, which was opposed by the local people living nearby. The BNP gathered a large scale public meeting. The AL cadres and police of over one hundred people came to suppress the crowd. There were gunshots and explosion of bombs. He was able to escape with minor injuries of bomb shell cuts. He had to leave for Dhaka because he thought that he would be targeted by the AL people. He learned that a case was filed against him. His family member also told him that the AL cadres were looking for him. They threatened to kill him. He therefore came to Hong Kong in October 2015.

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”).

5.  By Notice of Decision dated 6 October 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board

6.  The applicant appealed to the Board and he attended a hearing before the Adjudicator on 3 July 2018.

7.  By Decision dated 25 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, after further investigation into the facts of the case, the Adjudicator found that he had not made out a case for non-refoulement protection, the reasons being that there was no evidence to suggest that he was a popular leader for BNP in the area of Doraboti; there was no evidence that he was targeted by AL members; there was no evidence for him to say that there were cases filed against him for the large scale public meeting in 2014; and he had made contradictory statements [21].

9.  In his Form 86, the applicant applied for leave to apply 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 22-page submissions 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 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 and had applied the wrong standard of proof;

(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 his obligation to obtain the requisite documents for his 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

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 it to him. His friend had explained to him 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 some 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 in light of the Court of Appeal‘s decision.

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

CONCLUSION

22.  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