MD MASUD RANA alias MOHAMMAD MASUD SHEIKH v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1182/2018

[2019] HKCFI 2964

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1182 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 Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 21 June 2018 (“the Board’s Decision”), with the Director of Immigration (“the Director”) as the interested party.

2.  The applicant was absent on two occasions, one on 14 December 2018 for the hearing of his application for leave to apply for judicial review and his application was dismissed for want of prosecution. The second occasion was on 20 February 2019 for hearing his summons for appeal against my previous decision out of time. This summons was dismissed again for want of prosecution. Subsequently, the applicant also made an application for withdrawal of his application for leave to apply for judicial review.

3.  The applicant was unable to give a satisfactory explanation for his absence. He simply said that he did not receive the notice of hearing though the address was his last known address. However, the Court of Appeal held that even the applicant is absent without good explanation, the court should consider the merit of his case before making its decision. See Re Abdus Salam [2019] HKCA 1091 at §22.

4.  I therefore set aside my previous orders of dismissal of the applicant’s application and summons and I shall proceed to consider the merits of his case, taking into account that now he wishes to withdraw his application.

The applicant

5.  The applicant is a Bangladeshi national. He came to Hong Kong illegally on 14 December 2012 and was arrested by police on 2 February 2013. He lodged his non‑refoulement claim by written representations respectively dated 7 February 2013 and 4 March 2013.

6.  He claimed that if he refouled, he would be harmed or killed by the Bangladesh Nationalist Party (“BNP”) and the Awami League (“AL”) members as he refused to join their parties. He also feared that he might be arrested by the Bangladesh Police because of a murder case and a fraud case and he would be caught by the investors.

7.  He followed his father to be a Jatiya supporter. Between 2000 to 2006, he was recruited by BNP people to join it. He refused. In 2005 and 2006, he was assaulted by the BNP people at home and on the street. Between 2008 to 2010 when the AL had taken power over BNP, the AL people tried to recruit him to join them. He refused. They came to his family and beat up his father. He was not at home on that occasion. The matter was reported to police, which took no action. In May 2010, about 50 of the AL people came to his family shop and vandalized it. He closed the shop eventually. A leader of Jatiya was murdered in 2013. He learned from his cousin that the police attempted to frame him up for the murder.

8.  In 2008, he was a salesman of an investment company. He managed to obtain 2.5 million Taka from investors. The money was put in a bank, which collapsed. The investors came to him for their money. He was unable to pay. They reported to police. The police were attempting to frame him up for fraud.

The Director’s Decision

9.  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. persecution with 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”).

10.  By Notice of Decision dated 28 July 2017, the Director refused his application. The Director found that there was no substantial ground to believe that the applicant would have the risk as claimed upon his return to Bangladesh [11]; that state protection was available to him [12] and that internal relocation was an option open to him [13].

The Board

11.  The applicant attended a hearing before the Adjudicator on 6 February 2018.

12.  By Decision dated 21 June 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision. The Board found that it did not accept that the applicant would face any real risk from supporters of BNP or AL by reason of his membership in Jatiya [63]; that the failed investments were private monetary disputes unrelated to AL [65]; that the government was in no way involved in the alleged attack or ill-treatment [67]; that he would not be subjected to torture within the meaning of section 37U of the Ordinance [69]; that there would be state protection for him [71 & 72] and that internal relocation was an available option for him [96].

Application for leave to apply for judicial review

13.  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 to apply for judicial review of the decisions the Director and the Adjudicator of the Board respectively.

14.  In his affirmation in support of his application dated on 25 June 2018, he set out the reasons in support of his application in a narrative form. These grounds are discursive and repetitive, broadly that there was misdirection in the law, procedural impropriety/unfairness and irrationality, of all which were without evidence or particulars in support. I shall, nevertheless, summarize them 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 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 considered irrelevant facts or had failed to considered facts which were in favour of his case;

(8) the Adjudicator had not done sufficient research in the Country of Origin Information (“COI”) and her knowledge was not updated;

(9) the Adjudicator had relied upon hearsay information and outdated material in relation to COI;

(10) the Adjudicator had cherry-picked and given undue weight on the irrelevant material, neglecting the materials favourable to his case;

(11) 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;

(12) the Adjudicator failed to fulfil her obligation to obtain the requisite documents for her adjudication;

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

(14) BOR 2 risk was assessed without screening;

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

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

DISCUSSION

15.  The applicant appeared before this Court and confirmed that he was able to express himself freely and fully before the Immigration officer and the Adjudicator of the Board. He could read English himself. His lawyer had explained the Director’s Decision to him. He could read the Board’s Decision himself.

16.  I put the Board’s findings above to him and ask him for his comments. He said that he did not have any comments.

17.  Later, he applied for withdrawing his application. I shall deal with his application by way of dismissing his application.

18.  The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that free legal representation was not necessary in every stage of the proceedings as he had obtained legal representation from the Duty Lawyer Scheme for the screening stage. Ground (16) fails.

19.  The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held that lack of language assistance is not a ground for judicial review.

20.  Grounds (1) to (3) are inconsistent with his evidence before this Court.

21.  Grounds (4) to (13) are his opinions without any evidence in support of them.

22.  Ground (14) is not true. BOR 2 was assessed in the same screening.

23.  Ground (15) is irrelevant because he had not raised this issue before the Adjudicator.

24.  Ground (16) fails in light of the above Court of Appeal decision.

25.  I find that the applicant is unable to show that his intended judicial review has any reasonable prospect of success.

CONCLUSION

26.  Since the applicant’s application for judicial review has no reasonable prospect of success, 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