IBRAHIM v. SIMON RUSSELL, ESQ.

HCAL1748/2018

[2019] HKCFI 1625

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1748 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 to apply for judicial review against the decision of 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 13 May 2006 as a visitor and was allowed to stay until 27 May 2006. He overstayed and was arrested by police on 25 October 2007. He claimed asylum to the UNHCR and was released on recognizance on 16 November 2007. He was arrested for taking up unapproved employment on 16 April 2008, for which he was convicted and sentenced to three months’ imprisonment. On 5 July 2008, he lodged a non-refoulement claim.

3.  In his statements given to the Director and the Board, he said that if refouled, he would be harmed or killed by his enemies in Bangladesh because of a land dispute and he was named as a murderer. He and his family were staunch supporters of the Bangladesh Nationalist Party and were involved in struggle with the Awami League. He was accused in five cases, including a case of attempted murder, between 2004 and 2005. He was convicted in that case. He appealed but lost in 2016. He claimed that the witnesses gave false testimony against him.

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 5 January 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was unsubstantiated.

The Board

6.  The applicant appealed to the Board and he attended a hearing before the Adjudicator on 20 April 2018.

7.  By Decision dated 10 August 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 seemed not to cast doubt on the facts he alleged. However, it found that the applicant did not have the real intention of seeking asylum in Hong Kong. He had moved to other places where he did not come across any problem [20] and there was a delay of a year and a half after he had come to Hong Kong when he asked for asylum [21]. The Board “attaches no credence at all to the Appellant’s claim to have entered Hong Kong in search of international protection.” [22]. The Board also found that internal relocation was a reasonable alternative to the applicant [32]. Against the above factual background, the Board assessed each of the risks above and concluded that the applicant failed on all the applicable grounds [48].

Application for leave to apply for judicial review

9.  In his Form 86 dated 27 August 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 27 August 2018, the applicant relied upon the following grounds:

(1)  he was not provided with legal representation for his appeal to the Board;

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

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

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

(5)  the BOR 2 risk was assessed without screening; and

(6)  the Director and the Board reached their decisions without carefully understanding his situation.

DISCUSSION

The Board’s Decision

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 explained to him. He understood the Board’s Decision as his friend explained it to him. I explained the board findings above to him and asked if he had any comments. He did not have any comment.

12.  It is quite obvious that the Board considered his case and applied the relevant statutory provisions and Convention to it before coming to his conclusion.

13.  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) fails.

14.  Grounds (2) and (3) fail as they are inconsistent with what he said in Court.

15.  Grounds (4) and (6) are his opinions without any evidence in support of them.

16.  Ground (5) is irrelevant as he had been screened for all the risks in one go.

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

CONCLUSION

18.  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