Hossain Mohammed Nur v. Torture Claims Appeal Board

HCAL1190/2018

[2019] HKCFI 1279

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1190 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 illegally and was arrested by police on 23 June 2014. He was referred to the Immigration Department for investigation. He lodged a non-refoulement claim on 30 June 2014.

3.He claimed that if he was repatriated back to Bangladesh, he would be seriously harmed or killed by members of the Awami League members, in particular Kana Babu and Samad, because he was a supporter of the Bangladesh National League (“BNP”).

4.In his statements given to the Director and the Board, he said that he was a BNP supporter. One evening at the end of 2012, he was having tea at a tea shop where Kana Babu and Samad together with other two people came in and dragged him outside. They punched and kicked him for 7-8 minutes. He did not report this to the police and he took rest for 3 days. He asked the senior members of the BNP for help. They told him to be cautious himself. In March 2013, he came across those men together with other six people. They assaulted him with wooden sticks and cricket bat-handles. Some factory workers came out and scared them away. He sustained injuries all over his body on that occasion. He moved to other places to avoid those people. He had lived in his aunt’s home for four months. Then he returned to his own town. In March 2014, he met Kana Babu on the street again. Kana Babu called other people to the scene. He managed to escape from them and stayed in his friend’s home. He decided to come to Hong Kong. He first went to China from where he took a boat to come to Hong Kong.

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 2 November 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 and attended an appeal hearing before the Adjudicator of the Board. Having considered the applicant’s evidence as compared with his evidence which he had given to the Immigration officer, the Adjudicator disbelieved the applicant’s story. At paragraph 46 of the Board’s Decision, the Adjudicator found:

“I find the Appellant’s evidence inconsistent. His evidence is unreliable also because of the unreasonable nature of his claim. Furthermore, he admitted that he had no trouble when he was staying at his aunt’s home in Svar and his friend Sabbir’s home in Tejgaon. It is obvious that he would have no problem should he stay away from his home village area on his return to Bangladesh.”

8.By Decision dated 20 June 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

Application for leave for judicial review

9.By Form 86 dated 25 June 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the decision of the Adjudicator of the Board.

10.In his affirmation in support of his application dated 25 June 2018, he set out the reasons in support of his application in a narrative form. I shall summarize his specific grounds below:

(1)  he was not legally represented for the appeal;

(2)  the hearing bundle was delivered to him shortly before the appeal hearing and the contents were in English without translation; and

(3)  the Board relied upon on hearsay information, which is outdated.

DISCUSSION

11.Since the Board refused his appeal on the ground that the applicant was unable to establish his facts as he alleged, the applicant has no factual basis for his non‑refoulement claim.

12.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 (1) fails.

13.Ground (2) fails as he confirmed at the hearing before me that he had no complaint against the Immigration officer or the Adjudicator and that he had no problem at the appeal hearing. He had not identified the problem himself in his affirmation.

14.As to Ground (3), the applicant was unable to identify which part or parts of the Country of Origin Information or news are outdated and the problem with them. This ground therefore fails.

15.I find that the applicant has failed to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

16.Since the applicant’s application for judicial review has no reasonable propsect of success, I refuse to grant him leave. Accordingly, I dismiss his application.

Dated the 23^rd day of May 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