MD NEKBAR ALIAS MD NAKBAR v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2820/2018

[2020] HKCFI 889

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2820 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 came to Hong Kong illegally on 22 July 2009. On the same day, he was arrested by police and referred to the Immigration Department. He lodged a non-refoulement claim on 26 July 2009.

3.  He came to Hong Kong illegally through China on 22 July 2009. He was arrested by police on 22 July 2009. He lodged his non-refoulement claim on 26 July 2009.

4.  His reason for his application is that if refouled, he would be subjected to harm from the Awami League (“AL”) in connection with his failure to yield to their extortion demands. He claimed to be a supporter of the Bangladesh Nationalist Party (“BNP”). He also claimed that false charge of kidnapping was made against him. The charge was dismissed by the court. He feared that it might be re-opened should he return to Bangladesh.

The Director’s Decision

5.  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 under RC”).

6.  By Notice of Decision dated 12 October 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was unsubstantiated.

The Board’s Decision

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

8.  By Decision dated 3 December 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

9.  The Board considered the applicant’s evidence and it rejected his evidence that he had been wrongly charged or detained in prison. It did not accept that he faced a real chance of harm of any kind for any reason in Bangladesh in the reasonably foreseeable future [49 & 50].

Application for leave to apply for judicial review

10.  In his Form 86 dated 10 December 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.

11.  In his submission attached to Form 86 in support of his application, the applicant relied upon the grounds below.

1.  He was not legally represented in his appeal and there was no legal advice.

2.  The hearing bundle was only given to him shortly before the appeal hearing and he did not have sufficient time to prepare for the hearing.

3.  The hearing bundle is in English and he was unable to get cheap interpreter to understand it.

4.  The Board relied upon news not officially recognized, outdated or hearsay materials. The finding that he would be safe if he returned to Bangladesh is only speculation.

5.  There was no screening by the immigration officer for BOR 2 risk.

DISCUSSION

12.  The applicant appeared before me. He confirmed that he had been able to speak freely and tell his stories fully to the Immigration officer and the Adjudicator. He can read English, so he understood the Director’s Decision and the Board’s Decision.

13.  I put the Board’s findings to him and ask him for his comments. He said that he had no comments.

14.  It is obvious that the Board rejected all the significant facts in support of his claim. As such, he has no factual basis for his application.

15.  The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that the finding of facts are within the province of the Director and the Adjudicator, whose findings will be final, subject to judicial review. There is no evidence to show the Board committed any error in coming to its decision.

16.  The Court of Appeal in Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings.

17.  The Court of Appeal in Re: Sattar Abdul [2019] HKCA 613, 4 June 2019 held that high standard of fairness would not require provision of interpretation for the applicant.

18.  In fact, the applicant confirmed that he could read English himself.

19.  Grounds (1) to (3) fail.

20.  Ground (4) is his opinion without any evidence in support of it.

21.  Ground (5) is inconsistent with the fact that BOR 2 risk was considered together with other risks in the screening before the immigration officer.

CONCLUSION

22.  For the reasons above, l consider that the applicant is unable to show that he has any reasonable prospect in his intended judicial review. I refuse to grant him leave to apply for judicial review of the Board’s Decision. 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