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

HCAL 1582/2018

[2020] HKCFI 724

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1582 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 an application taken out by the applicant pursuant to Order 53, rule 3 (2) of the Rules of the High Court (“RHC”) for leave to apply for judicial review of 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.

2.  The applicant requested a hearing.  The hearing was fixed at 10:00 am on 31 January 2019.  However, the applicant was absent on that day.

3.  By an Order dated 31 January 2019, this Court dismissed his application for want of prosecution.

4.  The applicant has now taken out an application for leave to appeal against the said Order to the Court of Appeal.

5.  On 11 February 2019, the applicant filed an affirmation in which he said that he was very confused on that day because he had another attendance for his application for legal aid. He had attended the Legal Aid hearing on that day. He only realized that he had made a mistake after the hearing.

6.  I am satisfied with his explanation for his absence on 31 January 2019.

7.  Under Order 32, rule 6 of the RHC, this Court has the jurisdiction to set aside an order made ex parte.  Pursuant to Order 1A, rule 1 and Order 1B, rule 1(2)(l) RHC, I shall now treat the applicant’s application as an application to set aside the order which I made on 31 January 2019 dismissing his application. The said order is now set aside.

8.  I shall now consider the applicant’s application for leave to apply for judicial review of the Board’s Decision.

The applicant

9.  The applicant is a Bangladeshi national. He arrived in Hong Kong on 23 December 2013 illegally. He was arrested by police on 24 March 2014 and was referred to the Immigration Department for further investigation. On 26 March 2014, he lodged a non‑refoulement claim.

10.  In his statements given to the Director and the Board, he said that if he was returned to Bangladesh, he would be ill-treated by some members of the Awami League (“AL”) owing to the fact that he was a member of the Bangladesh Nationalist Party (“BNP”).

11.  In his statements, he said that he came from a well-off family. He had successfully established a restaurant together with his brother. The restaurant seated about 20 people. However, in June 2012 the AL people came to his restaurant to recruit him to join them. He refused. They threatened him, assaulted him and vandalized his restaurant. He suffered injury to his face. He stayed at home. In August 2012, he moved to his cousin’s house where he stayed. In January 2013, he returned to his restaurant to carry on his business. The AL people came again with sticks. He fled immediately. He later returned, only to find that his restaurant had been vandalized. He moved to his uncle’s place to stay. He came across AL people and was threatened again. In April 2013, he moved to his cousin’s where he continued to receive threatening telephone calls and he learned that a false case of him torturing an innocent woman had been made against him. He moved to his friend’s place. He was advised by his family to move Hong Kong.

The Director’s Decision

12.  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”).

13.  By Notice of Decision dated 26 April 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was not substantiated.

The Board

14.  The applicant appealed to the Board and attended a hearing before the Adjudicator on 4 July 2018.

15.  By Decision dated 31 July 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

16.  The Adjudicator stated in the Board’s Decision that having considered the applicant’s evidence, it concluded:

“45. …whilst it finds that he is a well-off BNP supporter, in light of findings above, the Board does not consider that he would face a real risk of suffering proscribed harm should he return to Bangladesh in the reasonably foreseeable future. He has embellished his claims and overstated the interest the Awami League had, has or would have in him in the future. Based on the evidence as a whole, the Boards finds for the reasons that follow the Appellant’s case for non-refoulement has not been made out.”

17.  The Board considered his evidence and found that he had exaggerated the nature and extent of the violence against him at the hands of the AL supporters, his involvement with the BNP and ultimately the risks that he faces should he return to Bangladesh [34]. The Board did not accept that there was a false case against him as he alleged [40].

18.  By Form 86 dated 9 August 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 Board’s Decision.

19.  In his affirmation in support of his application dated 9 August 2018, the applicant relied upon the following grounds:

(1)     he was not legally represented nor legally assisted in his appeal;

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

(3)     the Board had relied upon the source of news which is not officially recognized, hearsay or outdated;

(4)     he was not screened for the BOR 2 risk; and

(5)     the Director and the Adjudicator reached their wrong decisions without doing sufficient research in his situation.

20.  However, he has also attached a written submission on the grounds in support of his application, which runs 21 pages to Form 86. I shall summarize it below:

(6)     the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare his case;

(7)     the contents of the hearing bundle were in English and he was unable to obtain interpreter service;

(8)     he was confused at the appeal hearing;

(9)     the Adjudicator was unfair and had not given greater care to a self-represented claimant;

(10)     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;

(11)     the Adjudicator had applied the incorrect standard of proof;

(12)     the Adjudicator had considered irrelevant facts or had failed to considered facts which were in favour of his case;

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

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

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

(16)     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;

(17)     the Adjudicator failed to fulfil his obligation to obtain the requisite documents for his adjudication;

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

(19)     BOR 2 risk was assessed without screening;

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

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

DISCUSSION

21.  The applicant appeared before me. He confirmed that he considered that he had had a fair hearing before the Immigration officer and the Adjudicator. The Hearing Bundle was explained to him by his friend. His friend had also explained the Board’s Decision to him.

22.  It is obvious that the Board concluded that the factual basis of the case did not support his claim.

23.  The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant does not have the absolute right of free legal representation at every stage of the proceedings. He had already had legal representation at the screening stage before the Immigration office, which is very important stage for fact finding. The Board also relied upon such findings. He cannot complain that he did not have legal representation at the appeal stage or for this application.

24.  The applicant has the burden to raise substantive grounds for his application, with particulars and explanation as to why he considers those grounds support his application. See Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29, and Rasaratnam v Canada (Minister of Employment and Immigration) [1992] 1 FC 706; Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 FC 589. [31] TK v Jenkins & Another [2013] 1 HKC 526, C.A. at §25.

25.  This fundamental burden applies at every stage of the proceedings though the court has the duty of applying the enhanced standard of fairness in the assessment of his case. A general statement or comment without identifying the facts or issues, telling this Court in what respect such facts or issues would cause prejudice to his appeal before the Board is simply not sufficient.

26.  I shall deal with his grounds in his affirmation. He has confirmed that he had no problem with the Hearing Bundle for the appeal as his friend had explained it to him. The fact that the Director decided not to have another screening for BOR 2 risk is entirely at the Director’s discretion under the law. He has no ground to complain the Director’s discretion. All other grounds do not sustain as they are either opinions or he has no reasons to complain.

27.  As to the grounds attached to Form 86, they are either repetitive of the grounds in his affirmation or they are ground not relevant to the reasons on which the Board refused his appeal. They seem to be copied from other similar applications. This can be seen by the jumbled structure and wrong description of the Adjudicator’s gender in those grounds. They must be rejected.

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

CONCLUSION

29.  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