Ibrahim v. Simon Russell, Esq.
Read the full judgment text of HCAL 1748/2018 on BabelCite. This High Court CFI judgment was delivered on 26 June 2019.
1. This is the applicant’s application for leave to apply for judicial review against the decision of Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as the interested party.
Cited by 5 cases · Cites 8 cases
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HCAL1748/2018 [2019] HKCFI 1625 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1748 of 2018 BETWEEN
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
Order by Deputy High Court Judge K.W. Lung:
Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung): THE APPLICATION 1.This is the applicant’s application for leave to apply for judicial review against the decision of 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 arrived in Hong Kong on 13 May 2006 as a visitor and was allowed to stay until 27 May 2006. He overstayed and was arrested by police on 25 October 2007. He claimed asylum to the UNHCR and was released on recognizance on 16 November 2007. He was arrested for taking up unapproved employment on 16 April 2008, for which he was convicted and sentenced to three months’ imprisonment. On 5 July 2008, he lodged a non-refoulement claim. 3.In his statements given to the Director and the Board, he said that if refouled, he would be harmed or killed by his enemies in Bangladesh because of a land dispute and he was named as a murderer. He and his family were staunch supporters of the Bangladesh Nationalist Party and were involved in struggle with the Awami League. He was accused in five cases, including a case of attempted murder, between 2004 and 2005. He was convicted in that case. He appealed but lost in 2016. He claimed that the witnesses gave false testimony against him. The Director’s Decision 4.The Director considered his application in relation to the following risks:
5.By Notice of Decision dated 5 January 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was unsubstantiated. The Board 6.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 20 April 2018. 7.By Decision dated 10 August 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision. 8.The Board considered the applicant’s case and seemed not to cast doubt on the facts he alleged. However, it found that the applicant did not have the real intention of seeking asylum in Hong Kong. He had moved to other places where he did not come across any problem [20] and there was a delay of a year and a half after he had come to Hong Kong when he asked for asylum [21]. The Board “attaches no credence at all to the Appellant’s claim to have entered Hong Kong in search of international protection.” [22]. The Board also found that internal relocation was a reasonable alternative to the applicant [32]. Against the above factual background, the Board assessed each of the risks above and concluded that the applicant failed on all the applicable grounds [48]. Application for leave to apply for judicial review 9.In his Form 86 dated 27 August 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 27 August 2018, the applicant relied upon the following grounds:
DISCUSSION The Board’s Decision 11.The applicant appeared before me. He confirmed that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. He also confirmed that he understood the Director’s Decision as his lawyer explained to him. He understood the Board’s Decision as his friend explained it to him. I explained the board findings above to him and asked if he had any comments. He did not have any comment. 12.It is quite obvious that the Board considered his case and applied the relevant statutory provisions and Convention to it before coming to his conclusion. 13.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. 14.Grounds (2) and (3) fail as they are inconsistent with what he said in Court. 15.Grounds (4) and (6) are his opinions without any evidence in support of them. 16.Ground (5) is irrelevant as he had been screened for all the risks in one go. 17.The applicant fails to show that he has a reasonable chance of success in his proposed judicial review. CONCLUSION 18.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the judicial review. Accordingly, I dismiss his application. Dated the 26th day of June 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
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Cases cited in this judgment