Case Document

100%Judiciary

HCAL1693/2018

[2019] HKCFI 2191

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1693 of 2018

BETWEEN

	Md Repon Monse	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	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 documents only; or
	consideration of documents and oral submission 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 interested party.

The applicant

2.The applicant is a Bangladeshi national. He arrived in Hong Kong on 20 September 2009 as a visitor and was allowed to stay until 27 September 2009. He overstayed and was arrested by police on 13 December 2009. He lodged a non-refoulement claim on 16 December 2009.

3.In his statements given to the Director and the Board, he said that if he returned to Bangladesh, he would be harmed or killed by the people from the Awami League (“AL”) since he was a member of the Bangladesh Nationalist Party (“BNP”). He further said that in 2009 after the AL won the election, he was approached by the AL leader and was told either to leave the village or join AL. Four months later, he was confronted by 4 or 5 AL members, who slapped him, kicked him and punched him around for 2 to 3 minutes. He took his mother’s advice and moved to Dhaka where his brother resided. He stayed there for 4 months. Nothing happened during this period of time. He then took his brother’s advice to leave the country.

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 under RC”).

5.By Notice of Decision dated 31 August 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was rejected for the reasons that his claim was unsubstantiated.

The Board

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

7.By Decision dated 27 July 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 there were inconsistencies and contradictions in his evidence in relation to who threatened him and the alleged murder charge he said the police would frame him up [35]. As a result, the Board simply disbelieved his evidence as to the facts of his claim that he was assaulted by the AL people or that he was targeted by the AL people and that state protection was available to him if he were assault [36].

9.In his Form 86, the applicant applied for leave for judicial review of the Board’s Decision.

10.In his affirmation in support of his application dated 21 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) it was unfair for the BOR 2 risk to be assessed without screening;

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

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

(7) the Director and the Board had reached the wrong decision.

DISCUSSION

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. His friend explained the Hearing Bundle and the Board’s Decision to him.

12.I explained the comments above to him and asked if he had any comments. He said that he did not have any comment.

13.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.

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

15.Ground (4) is irrelevant as he had an interview with the Immigration officer on BOR 2.

16.Grounds (5) and (7) are his opinion without any evidence in support of them. They fail.

17.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.”

18.Ground (7) 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 the judicial review. Accordingly, I dismiss his application.

Dated the 5^th day of September 2019

	(Alan Ngan)
	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 5/9/2019 Md Repon Monse 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 5/9/2019 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 8476/17/9/148/B969 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1711/17(formerly RBCZ3247/09) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)