FARUK MD OMR v. THE ADJUDICATOR OF THE TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL1451/2018

[2019] HKCFI 624

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1451 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;

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 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 arrived in Hong Kong on 14 February 2016 illegally. He lodged a non-refoulement claim on 14 March 2016 on the ground that if he was refouled to Bangladesh, he would be harmed or killed by Arif and Awami League (“AL”) people as he refused to quit Bangladesh Nationalist Party (“BNP”) to join AL.

3.  In his statements given to the Director and the Board, he said that he was threatened by the AL people and even beaten up by them in 2010; that he was assaulted whilst on his way to a BNP gathering and that he was threatened again at a New Year Party for the BNP. He had travelled to Nepal. But he did not seek protection there. He came to Hong Kong. But he did not seek protection immediately because he did not know what to do.

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.  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”).

5.  By Notice of Decision dated 9 February 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was not substantiated.

The Board

6.  The applicant appealed to the Board and attended a hearing before the Adjudicator on 24 April 2018.

7.  By Decision dated 13 July 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

8.  The Adjudicator stated in the Board’s Decision that there were a number of discrepancies of the applicant’s evidence given to the Director and to the Board, for which he was unable to explain [18]; his evidence for not reporting the attacks to the police implausible [20]; that he did not seek protection immediately after arriving in Hong Kong, not until he was arrested by the police [22]. At paragraph 24 of the Board’s Decision, the Adjudicator said:

“To summarise its findings: the Board accepts no part of the Appellant’s claim….”

9.  By Form 86 dated 24 July 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.

10.  In his affirmation in support of his application dated 24 July 2018, the applicant relied upon the grounds below:

(1)  he did not have legal representation or legal assistance for the appeal;

(2)  the Hearing Bundle was given to him shortly before the appeal hearing and it was without translation;

(3)  the Board had relied upon such source of news not officially recognized or hearsay;

(4)  BOR 2 risk was assessed without screening; and

(5)  the Director and the Board reached a wrong decision because they had not done proper enquiry the situation.

DISCUSSION

The Board’s Decision

11.  The applicant appeared before me. He confirmed that he considered that he had had a fair hearing before the Adjudicator. Before he attended the appeal hearing, he had asked a friend to explain the contents of the Hearing Bundle. This defeats grounds (2).

12.  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 (1) therefore fails.

13.  Ground (3) fails because the applicant was unable to identify the source of news.

14.  Ground (4) is a non-point because BOR 2 risk was assessed in the same screening as the other risks.

15.  Ground (5) is only the applicant’s opinion, without any evidence to support.

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

CONCLUSION

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