Case Document

100%Judiciary

HCAL1750/2018

[2019] HKCFI 2189

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1750 of 2018

BETWEEN

	Md Johirul Islam	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:

(1) An extension of time for the application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board dated 16 May 2017 be refused; and

(2) Leave to apply for judicial review be dismissed.

It is further directed that:

(1) If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2) When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3) The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4) If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5) Liberty to apply.

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 28 February 2007 illegally and was arrested by police on 5 April 2008. He was referred to the Immigration Department for investigation on 7 April 2008. He lodged a non-refoulement claim on 21 August 2008.

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 his previous business partner Abu and his men because he failed to give him money and he would be arrested by the Rapid Action Battalion Force (“RAB”) for his committed offence.

4.He said that since 2001 he and Abu were in partnership of importing food, cosmetics and medicines from India to Bangladesh. The business then turned into illegal smuggling of arms. Abu was arrested by RAB, but was released shortly. Abu ceased the business but refused to return the money he had invested in the business. Abu took some people to his home and demanded 500,000 taka from his parents. He moved to live in his uncle’s home in Dhaka in 2005. At the same time, he was afraid that the RAB would arrest him for the illegal smuggling activities. He took his father’s advice to come to Hong Kong in 2007.

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 under RC”).

6.By Notice of Decision dated 31 October 2014 (“the Director’s Decision”) and Notice of Further Decision dated 15 June 2017 (“the Director’s Further Decision”), the Director rejected his claim for the reason that his claim was not substantiated. The Director’s Decision and the Director’s Further Decision are collectively called “the Director’s Decisions”.

The Board

7.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 8 July 2016, 17 October 2017 and 11 December 2017 respectively.

8.By Decision dated 16 May 2017 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decisions.

9.The Board considered the applicant’s case and found that there were inconsistencies and contradictions in his evidence. It finally came to a conclusion that the applicant failed to establish that he was subjected to ill-treatment at the hand of Abu in Bangladesh as he claimed, or at all [95].

10.In his Form 86 dated 27 August 2018, the applicant applied for leave for judicial review of the Board’s Decision.

11.In his affirmation in support of his application dated 27 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) it was unfair for the BOR 2 risk to be assessed without screening;

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

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

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

DISCUSSION

The Board’s Decision - out of time

12.Under Order 53, rule 4(1) RHC, the applicant has to take out his application for leave to make an application for judicial review within 3 months from the date when the grounds for the application first arose.

13.The applicant issued this application on 27 August 2018. He is out of time for 11 days as the Board’s Decision is dated 16 May 2017. In accordance with the decision of the Court of Appeal in Kwok Cheuk Kin v Leung Chun Yin [2018] HKCA 419, CACV 110/2017 and CACV 162/2017, 23 July 2018, his application cannot proceed without this Court granting him an extension of time. See §28.

14.The applicant has not made an application for extension of time. Nor had he given any good reason for this Court’s consideration.

15.The consideration of whether time should be extended for the applicant to take out this application should be the same as held by the Court of Appeal in Khan Mohammad Shadab [2018] HKCA 897, CAMP 75/2018, 1 December 2018, namely, (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

16.This Court considers that there is no reasonable chance of success for the intended appeal for the reasons below.

17.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 helped him.

18.However, he said that he was not assigned the lawyer designated by him at the Duty Lawyer Office. He specifically asked for that lawyer because this lawyer had defended him in an ICAC case and he was acquitted. The Duty Lawyer Office said that the designated lawyer was too busy with other cases. However, on questions from this Court, he said that his lawyer had explained the case to him and he also explained the Director’s Decisions to him. He had no other complaint against his lawyer. It is trite law that the applicant does not have the absolute right to choose his own lawyer under the Duty Lawyer Scheme. Similar to other Legal Aid cases, the applicant had submitted himself to the administration of the Duty Lawyer Scheme. The Scheme would assign a competent lawyer for him. He has no right to designate a lawyer, say for example, a senior counsel for simple application. It is simply unreasonable. His right to his own lawyer refers to his lawyer at his own expense. The Scheme has a duty to protect the public fund from being abused. His complaint therefore has no substance.

19.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.

20.Grounds (1) and (2) fail as they are inconsistent with what the applicant said before this Court.

21.Grounds (4) and (6) are his opinion without any evidence in support of them. They fail.

22.Ground (3) fails because the Director could assess his BOR 2 risk without holding another interview under the law.

23.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.”

24.Ground (5) fails.

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

CONCLUSION

26.Since the applicant’s application for judicial review has no reasonable prospect of success, I will not grant him an extension of time for his application for leave 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 Johirul Islam 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 435/14/11/51/B85 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 115/09 & RBCZ 9001402/17 (formerly RBCZ 1556/08) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)