Mofijur v. The Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL1454/2018

[2019] HKCFI 586

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1454 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 interested party.

The applicant

2.The applicant is a Bangladeshi national. He arrived in Hong Kong on 17 April 2008 illegally through China. He was arrested by police on the same day. He was referred to the Immigration Department for investigation on 19 April 2008. On 26 April 2008, he lodged a non-refoulement claim. He claimed that if he was returned to Bangladesh, he would be harm or killed by his uncle Minhaz due to a land dispute.

3.In his statements given to the Director and the Board, he said that his grandfather and his brother jointly owned a piece of farmland. After their deaths, the farmland was divided equally and inherited by their sons, his father and Minhaz. Minhaz later sold his land. But he wanted to take over his father’s land. Minhaz brought some people to go into his father’s land and told his father to leave the land. His father refused whereupon Minhaz and his people beat his father up with sticks. His father’s head was bleeding and he returned home. The applicant learned about this and went to confront with Minhaz, who beat him up until he was unconscious. He reported this to the police, They refused to register it because Minhaz was well-connected with influential people. Minhaz further brought people to cause nuisance to his family. He moved to Dhaka and upon his friend’s advice, he came to Hong Kong.

The Director’s Decisions

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.  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”).

5.By Notice of Decision dated 25 September 2015 (“the Director’s Decision”) and by Notice of Further Decision dated 30 November 2016 (“the Director’s Further Decision”), collectively called “the Director’s Decisions”, the Director rejected his claim for the reason that his claim was not substantiated.

The Board

6.The applicant appealed to the Board and attended a hearing before the Adjudicator on 27 January 2017.

7.By Decision dated 9 July 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decisions.

8.The Adjudicator stated in the Board’s Decision that the applicant’s evidence was conflicting, which revealed that he was not telling a truthful account of what was happening to him. The information in the Torture Claim Form and the Supplementary Claim Form, in material aspects of the case, was seriously conflicting and that he could not rely on such unreliable information to reach a decision in his favour [47]. The Board further held that even if it accepted the information, it would still dismiss his appeal because it found that he left Bangladesh not because he was facing any real or personal risk from Minhaz [57]; state protection was available to him [59]; internal relocation was an option for him [64]; that there was no substantial grounds that he would be in danger of being subjected to torture if he returned to Bangladesh [77]; and that it was a private dispute without any government involvement [78].

9.By Form 86 dated 23 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.

10.In his affirmation in support of his application dated 23 July 2018, the applicant relied upon the grounds below:

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

(2)  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;

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

(4)  the Adjudicator failed to consider USHR 2010, USRF 2010 and The International Commission of Jurists (ICJ) “Report on the ICJ Mission to Bangladesh” Autumn 2011;

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

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

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

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

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

DISCUSSION

The Board’s Decision

11.The applicant appeared before me. He confirmed that he considered that he had had a fair hearing before the Adjudicator.

12.It is quite obvious that the Board rejected the applicant’s appeal based upon the applicant being unable to establish the facts of his case. The applicant has no factual basis for his claim.

13.Grounds (1) to (3) and (7) are opinion without any evidence in support of it. They fail.

14.Ground (4) fails too as the applicant did not say whether he had referred the Adjudicator to the material. Nor had he identified what material would assist his case.

15.Grounds (5) and (6) are the Adjudicator’s discretion of what evidence should be given weight. They fail.

16.Ground (8) fails as the applicant had not raised this issue with the Board.

17.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 (9) fails.

18.The applicant fails to show that he has a reasonable chance of success in his 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 13^th day of March 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