Rahman Azizul v. Simon Russell, The Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL995/2018

[2019] HKCFI 621

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 995 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 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.

2.The applicant requested a hearing.  The hearing was fixed at 10:00 am on 28 November 2018.  However, the applicant was absent on that day.

3.By an Order dated 28 November 2018, this Court dismissed his application for want of prosecution.

4.The applicant failed to take out an application for leave to appeal against the said Order to the Court of Appeal within time.  Pursuant to Order 59, rule 2B(1) of the Rules of the High Court (“RHC”), the applicant filed a summons on 19 December 2018 to seek leave to appeal against the said Order to the Court of Appeal out of time.

5.On 27 December 2018, this Court gave directions that a hearing be fixed at 10:00 am on 24 January 2019 and the applicant should file an affirmation to state his reasons for his absence on 28 November 2018 within 7 days from the date of the directions.

6.The applicant failed to comply with my directions. I requested the applicant to state his reasons before me. He took oath to say that he did not receive the letter. The letter-box was an open box and it is possible that the letter was taken away by someone else. He has no reason not to pursue the matter.

7.I am satisfied with his explanation for his absence on 28 November 2018.

8.Under Order 32, rule 6 of the RHC, this Court has the jurisdiction to set aside an order made ex parte.  Pursuant to Order 1A, rule 1 and Order 1B, rule 1(2)(l) RHC, I shall now treat the applicant’s application as an application to set aside the order which I made on 28 November 2018 dismissing his application.  The said order is now set aside.

9.I shall now consider the applicant’s application for leave for judicial review of the Board’s Decision.

The applicant

10.The applicant is a Bangladeshi national, who had, through China, entered Hong Kong illegally on 2 July 2014. He was arrested. On 5 July 2014 he claimed protection from refoulement to Bangladesh on the ground that if he was refouled to his country, he would be harmed or killed by the people of Awami League Party (“AL”), a rival party of his own party Bangladesh Nationalist Party of which he was an active member.

11.In his statements to the Director and the Board, the applicant said that there were clashes between these two parties. He was suspected to have taken part in the murder of an AL’s leader, who had had his head chopped off. The applicant was hunted by the police. He left Bangladesh for Hong Kong.

The grounds of non-refoulement protection

12.The applicant had gone through the unified screening mechanism by the Director of Immigration (“the Director”) on the following issues:

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”).

The Director’s Decision

13.By Notice of Decision dated 13 January 2017 (“the Director’s Decision”), the Director rejected his application. The Director had set out his reasons in the Decision.

Appeal to the Board

14.The applicant appealed to the Board. He attended before the Adjudicator of the Board on 23 April 2018 where an interpreter was arranged for the applicant.

15.The Adjudicator had made enquiry with the applicant as if it was a hearing de novo, relying upon AM v The Director of Immigration  [2013] HKCFI 1924.^[1]

16.By its Decision dated 23 May 2018 (“the Board’s Decision”), the Board refused the applicant’s appeal and confirmed the Director’s Decision.

17.In §18 of the Board’s Decision, the Adjudicator said:

“The Appellant’s evidence to the Board on 23 April was almost completely at variance in its details with the claim the Appellant put to the Director. Even within his evidence the Appellant was inconsistent as to names of victims and dates when events occurred. As a result, the Board has no clear sense of the timeline of the Appellant’s narrative and is uncertain about when events occurred or who was affected by them. For these reasons, the board is unwilling to attach any credence at all to the Appellant’s claim.”

Application for leave for judicial review

18.By Form 86 under Order 53, rule 3(2) RHC, the applicant applied for leave for judicial review of the Adjudicator of the Board, joining the Director as the interested party.

19.The applicant has set out his 22-page submissions in support of his application. I shall simply summarize his grounds in support of his application below:

(1)  the Adjudicator fettered his discretion unlawfully;

(2)  the Adjudicator acted in a procedurally unfair manner;

(3)  the Adjudicator’s decisions are unreasonable and irrational in the public law sense;

(4)  the Adjudicator failed to meet the greater care and duty owed to a self-represented claimant;

(5)  the Adjudicator had misapplied the law in relation to torture;

(6)  the Adjudicator had not done sufficient research into the Country of Origin Information (“COI”) or he had failed to applied appropriate weight to the COIs;

(7)  his findings against the applicant by reference to the COIs are irrational;

(8)  the applicant was not provided a lawyer for the appeal;

(9)  the Adjudicator has failed his duty to obtain the requisite documents for fair adjudication of the appeal;

(10)  the hearing bundle was given to the applicant a few days before the appeal and the contents are in English, which he had difficulty in understanding; but the applicant was not provided with translation or interpretation;

(11)  the Board did not give him notice by phone of the Decision; and

(12)  the Adjudicator had relied upon materials not officially recognized or it is simply hearsay.

DISCUSSION

20.The applicant appeared before me. He confirmed that he had had a fair hearing before the Board. He had no compliant against the Adjudicator. He did not complain he had any language problem or understanding of the Hearing Bundle.

21.It is obvious that the Board rejected his claim because the applicant had failed to establish his case on the facts. The applicant therefore had no factual basis in support of his claim. Those grounds above are quite irrelevant to the reasons for the Board’s Decision.

22.Grounds (1) to (7) are his opinion without any evidence in support of them. They are unsubstantiated. 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.

23.The Court of Appeal had held in Ali Haider CACV8/2018, [2018] HKCA 222 at §13: “Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision makers.”

24.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 (8) fails.

25.The applicant did not identify what documents he would like the Adjudicator to assist him to obtain. Ground (9) fails.

26.In view of what the applicant had said to me in court, Ground (10) must fail.

27.Ground (11) is a non-point. The Board has no special duty to call him by telephone. He had received the Board’s Decision in any event.

28.Ground (12) cannot stand as the applicant is unable to identify what material he was referring to.

CONCLUSION

29.Having considered the applicant’s grounds and for the reasons above, I find that the applicant’s application for judicial review has no reasonable prospect of success. Accordingly, I refuse to grant him leave for the judicial review. Accordingly, I dismiss the applicant’s application for leave for judicial review.

Dated the 15^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