Case Document

100%Judiciary

HCAL1714/2018

[2019] HKCFI 2039

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1714 of 2018

BETWEEN

	Awal Mohammad Rabiul	Applicant
	and
	Mrs. Sydelle MULING, ESQ	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 to apply for judicial review against the decision 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 29 September 2015 illegally and was arrested on the same day. He was referred to the Immigration Department for investigation on 2 October 2015. He lodged a non-refoulement claim on 4 October 2015.

3.In his statements given to the Director and the Board, he said that if he returned to Bangladesh, he would be harmed by the investors because he had persuaded them to invest in a company named Destiny 2000 and he had also acted as their guarantor for their investments. As a result, the company disappeared and the creditors including himself had lost all of their investments. The total amount involved was 35 million Taka. The matter was reported to the police and the government. But they were unable to render any assistance. In 2014, he was kidnapped by some unknown people. They blindfolded him on a vehicle and took him to a place where he was hit and kicked. He had suffered serious injuries and his eardrum was broken. He hid himself up. In 2015, he decided to come to Hong Kong as he was unable to pay back the creditors. He first went to China and then sneaked into Hong Kong.

The Director’s Decision

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.  risk of persecution by 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”).

5.By Notice of Decision dated 6 December 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

6.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 18 and 26 April 2018 respectively.

7.By Decision dated 7 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 found that the applicant was not one of the investor himself [44]; that it did not accept that he encouraged the 83 investors to make the investment; that he was the guarantor for those people [50]; that he was ever kidnapped or beaten up as he said [54]; that there is no real risk the applicant would face any of the proscribed forms of harm should he return to Bangladesh [59].

Application for leave to apply for judicial review

9.In his Form 86 dated 22 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 22 August 2018, the applicant relied upon the following grounds:

(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 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 real risk of torture in future;

(6)  the Adjudicator had applied the incorrect standard of proof;

(7)  the Adjudicator had not done sufficient research in the Country of Origin Information (“COI”) and her knowledge was not updated;

(8)  the Adjudicator had relied upon hearsay information and outdated materials in relation to COI;

(9)  the Adjudicator had cherry-picked and given undue weight on the irrelevant materials, neglecting the materials favourable to his case;

(10)  the Adjudicator had not considered USHR 2010, USFR 2010 and The International Commission of Jurists (ICJ) “Report on the ICJ Mission to Pakistan” Autumn 2011, which is favourable to his case;

(11)  the Adjudicator failed to fulfil her obligation to obtain the requisite documents for her adjudication;

(12)  the Adjudicator was wrong in issue of state protection in his country;

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

(14)  the applicant was not legally represented before the Board, which was in breach of procedural fairness.

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, though not very clear. I explained the comments above to him and asked if he had any comments. He did not have any comment. As to the grounds above, he said that they were prepared by his friend. He did not understand those grounds himself. I pointed out to him that those grounds were inconsistent with what he said in court, he did not have anything to say.

12.It is quite obvious that the Board did not accept the facts as stated by the applicant in support of his claim. Therefore, the applicant had no factual basis for his claim. Those grounds above are quite irrelevant. Nevertheless, I shall deal with them.

13.The Court of Appeal in Re: Moshsin Ali CACV54/2018 [2018] HKCA 549 held that the findings of facts by the Adjudicator was final [42].

14.Grounds (1) to (3) fail as they are inconsistent with what the applicant said before this Court.

15.Grounds (4) to (9), (11) and (12) are his opinions without any evidence in support of them. They fail.

16.Ground (10) fails as he did not refer those materials to the Adjudicator at the appeal hearing. They were not mentioned in the Board’s Decision. The applicant was unable to specify why those materials would support his claim.

17.Ground (13) fails because the applicant had not even raised this issue with the Board.

18.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 (14) fails.

19.The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

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

Dated the 15^th day of August 2019

(Henry Ng)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 15/8/2019 Awal Mohammad Rabiul Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 15/8/2019 Mrs. Sydelle MULING, ESQ Putative Respondent’s ref. no.: USM 9542/17/12/209/B1089 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2740/17 (formerly RBCZ 13619/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)