Sikder Ibrahim v. Gelev Filip, Esq.

HCAL939/2018

[2019] HKCFI 310

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 939 of 2018

BETWEEN

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;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.The applicant applies for leave 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.

The applicant

2.The applicant is a national of Bangladesh. He came to Hong Kong illegally on 26 December 2013. He was arrested by police on 7 February 2014. On 8 February 2014 he was transferred to the Immigration Department for investigation. On 9 February 2014, he lodged a non-refoulement claim by way of written signification and on 11 March 2014, he was released on recognizance.

3.By Non-refoulement Claim Form dated 14 December 2015 he made his application for non-refoulement protection and he went through the screening process.

The grounds of non-refoulement protection

4.He relied upon the ground that if he were repatriated to Bangladesh, he would be ill-treated by certain members of the Awami League (“AL”) because he was a supporter of its rival political party Bangladesh Nationalist Party.

5.In his statements given to the Director and the Adjudicator, the applicant mentioned various occasions where he was attacked by a number of AL members, as a result of which, he had suffered injuries all over his body. The AL members went to his father’s residence to look for him. He had been to other places such as his uncle’s place in order to avoid the AL members.

The Director’s Decision

6.By Notice of Decision dated 29 March 2017 (“the Director’s Decision”), the Director rejected his application for non-refoulement, with reasons set out in his Decision for the reason that his claim was unsubstantiated.

Appeal to the Board

7.He appealed to the Board and attended a hearing on 5 March 2018.

8.By its Decision dated 18 April 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

9.In the Board’s Decision, The Adjudicator set out the questions that he had put to the applicant and the answers to those questions. He further assessed the answers and finally came to his conclusion that the applicant’s evidence was not convincing. He found that the applicant had no real risk and, therefore, did not have a well-founded fear, or persecution on any Refugee Convention basis. At paragraph 129 of the Board’s Decision, he found:

“Having carefully assessed the totality of the evidence before it, based on the above problems with the Appellant’s evidence, the Board rejects his claims – individually and cumulatively – in their entirety.”

Application for leave for judicial review

10.By Form 86 under Order 53, rule 3(2) of the Rules of the High Court dated 25 May 2018, the applicant applied for leave for judicial review of the Decision of the Adjudicator of the Board, with the Director as the interested party.

DISCUSSION

11.The applicant has set out his grounds in support of his application for leave for judicial review of the Board’s Decision. It is a 22-page statement in which he had set out many redundant and irrelevant substances such as the facts of his case, the Conventions, the Basic Law etc.

12.At the hearing, the applicant told me that his friend prepared the statement for him. He did not understand the contents of it, such as the Conventions or the Basic Law or the case law. However, he had signed his name on the statement. I shall endeavor to summarize the grounds below:

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

b.  the contents of the hearing bundle were in English and he was unable to obtain interpreter service;

c.  he was confused at the appeal hearing;

d.  the Adjudicator was unfair and he had not given greater care to a self-represented claimant;

e.  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 risk of torture in future;

f.  the Adjudicator had not done sufficient research in the Country of Origin Information and his knowledge was not updated;

g.  the Adjudicator had relied upon hearsay information and outdated material in relation to Country of Origin Information;

h.  the Adjudicator had given undue weight on the irrelevant material;

i.  the Adjudicator was wrong in state protection in Bangladesh;

j.  the Adjudicator had failed to call for psychological and psychiatric reports on the applicant; and

k.  the applicant was not legally represented at the appeal hearing.

13.The applicant requested a hearing before the Court and he has appeared before me.

14.He said that those grounds above were written by his friend. He did not have much knowledge about them himself. He simply trusted his friend. He confirmed that he received the hearing bundle shortly before the appeal hearing. But he was able to get this friend to explain the contents to him. He was not confused when he attended the appeal hearing. He understood the questions put to him by the Adjudicator and he answered them fully. He confirmed that all his answers were true and correct.

15.What he said before me is clearly contradictory to those grounds above.

16.Even if those grounds were prepared by his friend on his behalf on the basis that he was not happy about the Board’s Decision, I consider that they are not substantiated.

17.The burden is on the applicant to set out the grounds in support of his application, such grounds have to bear substance, not just “putting forward a bare and flimsy assertion” Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29

18.12.d., f., g., h., i. are his opinions or comments. They do not constitute valid grounds to challenge the Board’s Decision.

19.12. a., b, c are inconsistent with his own version in Court. They can be disregarded.

20.As to 12.e, the Adjudicator did not rely upon his past experience of torturing. The Adjudicator was entitled to consider his past experience to consider his allegation that he would be tortured if he was refouled back to Bangladesh. His allegation would be fortified by his past experience of torturing. It is a matter of weight that the Adjudicator would give to his allegation.

21.As to 12. J., the applicant had not raised the issue of his psychological or psychiatric in the screening process by the Immigration officer or before the Adjudicator. There is nothing amiss for the Board not to call for such reports.

22.As to 12.k., the Court of Appeal in  Re: Ahmea 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. 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.”

23.I consider that the applicant has raised no reasonable ground in support of his judicial review.

CONCLUSION

24.For the reasons above, I find that the application’s proposed application for judicial review of the Board’s Decision has no reasonable chance of success. I decline granting leave for the applicant’s proposed judicial review. Accordingly, I dismiss his application.

Dated the 8^th day of February 2019

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