Talukdar Md Jashim Uddin v. Kevin Anthony Browne, The Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL1395/2018

[2019] HKCFI 415

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1395 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.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 came to Hong Kong on 16 July 2013 and was allowed to stay as a visitor until 30 July 2013. He overstayed without the Director’s permission. He was arrested by police on 26 February 2014 and was referred to the Immigration Department for investigation on 27 February 2014. He lodged his non-refoulement claim on 1 March 2014.

3.He claimed that if he were repatriated back to Bangladesh, he would be harmed or killed by the members of the Awami Leaue Party and the creditors of the Brac Bank.

4.In the statements given to the Director, the applicant said that he had a high position in BNP. At the meeting in 2012, around 400 to 500 AL members attacked him and his members, as a result of which he fell unconscious, only found himself in hospital when he came round. He was also threatened by the AL members and they demanded money from him. He had borrowed money from Brac Bank for his business. Due to his BNP business, he failed to make ends meet in his own business. The Bank was pressing for payment of the instalment payments. Finally, he had to come to Hong Kong to avoid the AL members and the Bank.

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.  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 7 December 2016 (“the Director’s Decision”), the Director refused his application for the reason that his non-refoulement claim was not substantiated.

The Board

7.The applicant appealed to the Board. On 27 March 2018, he attended before the Adjudicator of the Board.

8.Having considered the evidence, the Board, by its Decision dated 29 June 2018 (“the Board’s Decision”), refused his appeal and confirmed the Director’s Decision.

9.The Adjudicator found that the applicant was an unreliable witness. He was also involved in a murder case in Bangladesh. [51]. The Adjudicator further said at paragraph 53:

“Taking into account all circumstances, I had no doubt that the Petitioner was lying about this matter.”

Application for leave for judicial review

10.By Form 86 dated 16 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.

11.In his affirmation in support of his application dated 16 July 2018, the applicant relied on a 22-page submission with jumbled grounds. I shall now summarize and set out the reasons in support of his application below:

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

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

(3)  he was confused at the appeal hearing;

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

(5)  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;

(6)  the Adjudicator had not done sufficient research in the Country of Origin Information and his knowledge was not updated;

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

(8)  the Adjudicator had given undue weight on the irrelevant material;

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

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

(11)  the applicant was not legally represented at the appeal hearing.

DISCUSSION

12.The Adjudicator did not believe the facts as alleged by the applicant. The applicant therefore has no factual basis for his claim.

13.The applicant had appeared before me. He confirmed that he had no complaint against the Immigration officer or the Adjudicator. He confirmed that he had a fair screening and a fair appeal hearing. He understood the Hearing Bundle and had no difficulty in communicating with the Adjudicator. Grounds (1) to (4) cannot sustain.

14.As to ground (5), the Adjudicator was entitled to consider his past experience to consider his allegation that he would be harmed if he was refouled 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.

15.Grounds (6) to (9) are his personal opinion, with no evidence in support of them. They are unsubstantiated.

16.As to ground (10), the applicant had not raised this issue with the Adjudicator. He simply cannot complain against the Board.

17.As to ground (11), 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.”

18.I find that the applicant is unable to show that he has a reasonable chance of success in the proposed judicial review.

CONCLUSION

19.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.

Dated the 25^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