Ali Sikandar v. Wesley Wong, Esq.

HCAL2592/2018

[2019] HKCFI 2043

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2592 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 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 19 November 2014 as a visitor and was allowed to stay until 3 December 2014. He overstayed. On 9 October 2015, he surrendered to the Immigration Department. On 12 November 2015, he lodged a non-refoulement claim.

3.His reason for his application is that if he was refouled to Bangladesh, he would be harmed by a group of Awami League (“AL”) leaders because he was indebted to some of those leaders and because he was a member of Bangladesh Nationalist Party (“BNP”) and he refused to join the AL.

4.In his statements given to the Director and his oral evidence before the Board, he claimed that he had borrowed a loan from some of the AL leaders to run his poultry business. There was bird’s flu, which caused him to lose a lot of money. He was unable to repay his loan. He was actively participating in the party business of the BNP. Those AL leaders invited him to join their party. He refused. Those creditors demanded repayment of his loan. He was unable to do so. They had assaulted him with knife and sticks. As a result, he suffered injuries and had to receive medication of stitches from hospital. He moved to another place to avoid them. He was advised by his friends to go to Hong Kong for business opportunity. He took their advice and came to Hong Kong.

The Director’s Decisions

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.  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”).

6.By Notice of Decision dated 16 November 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was unsubstantiated.

The Board’s Decision

7.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 27 September 2018.

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

9.The Board considered the applicant’s case. Having considered the facts of his case, the Board refused his appeal and confirmed the Director’s Decision. This decision is based on the following reasons:

a.  “the applicant had no intention of seeking non-refoulement protection in Hong Kong because he said that he came to Hong Kong for business opportunities; he had not sought protection from the Director until 11 months after his arrival and upon suggestion of his friends here; and that he came to Hong Kong was solely for the purpose of avoiding the creditors in Bangladesh” [22]; and

b.  “his evidence that he was an active supporter of BNP and that he had attracted the AL leaders’ attention to recruit him was unreliable” [23].

Application for leave to apply for judicial review

10.In his Form 86 dated 19 November 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.

11.In his affirmation and submission annexed to Form 86 in support of his application, the applicant relied upon the following grounds:

(1)  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;

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

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

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

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

(6)  the Board had not considered that there was a consistent pattern of gross, flagrant or mass violations of human rights in the assessment of BOR 3 risk;

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

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

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

(10)  the applicant was not legally represented before the Board, which was in breach of procedural fairness; and

(11)  the applicant was not screened for BOR 2 risk.

DISCUSSION

The Board’s Decision

12.The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. Their respective Decisions had been explained to him by his lawyer and his friend respectively. He considered that he had had a fair hearing before the Board.

13.At the Board’s premises, the interpreter had explained the hearing bundle to him. Also, he had gone to the Board’s premise to collect the Board’s Decision. He asked for translation service. He was told to return so that an interpreter could be arranged. He had the translation service at the Board’s premises as promised.

14.I had put the Board’s findings to him and asked him for his comments. He said that he had no comments.

15.Grounds (1) to (6) and (8) are his opinions without any evidence in support of them.

16.Grounds (7) and (9) fail as he had not raised this issue with the Board. They were not mentioned in the Board’s decision; the applicant was unable to specify why those materials would support his claim.

17.In Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22, the Court of Appeal held that the applicant had no absolute right to legal representation at every stage of the proceedings as he has already had legal representation at the screening stage. Ground (10) fails.

18.Ground (11) is irrelevant as it was a unified screening mechanism including BOR 2 risk.

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 16^th day of August 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