Case Document

100%Judiciary

HCAL1747/2018

[2019] HKCFI 2214

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1747 of 2018

BETWEEN

	Shahajul Mollah	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	The 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 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 illegally through China on 18 March 2009. He was arrested by police on 1 April 2009 and was referred to the Immigration Department for investigation. He lodged a non-refoulement claim on 4 April 2009.

3.In his statements given to the Director and the Board, he said that if he was to return to Bangladesh, he would be harmed or killed by the members of Awami League (“AL”) and arrested by the police as AL had frame up five cases against him.

4.He claimed that in 2003, he had a fight with Awami League (“AL”) people and was hurt. He subsequently joined the Bangladesh National Party (“BNP”) in the same year. He worked as a Public Relations Secretary for BNP in 2007. Between 2007 and 2008, he was attacked by the AL people. His waist was slashed. Whilst in hospital, he heard that the AL people were looking for him. He fled without receiving treatment and hid himself up. Then he was told that he was suspected of have murdered the general secretary of the student wing of AL. He was also suspected of having committed four other offences: extortion, robbery, arson and fighting and he was wanted by police. He moved to other places and lived in his sister’s house in Jussore for a month. His father was beaten up and his house was burnt down by the AL people. In early 2008, he was in Chittagon and nothing happened. He was advised to leave for Vietnam. He took the advice and went to Vietnam. There, he was advised to go to Hong Kong where there would be better protection. He agreed and came to Hong Kong through China.

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 27 January 2016 (“the Director’s Decision”) and by Notice of Further Decision dated 20 June 2017 (“the Director’s Further Decision”), collectively called “the Director’s Decisions”, 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 14 June 2018.

8.By Decision dated 13 August 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s case and found that it accepted part of the stories as alleged by the applicant and reject other part of his stories [17]. It accepted that he was convicted one criminal charge and was being investigated in two criminal charges in Bangladesh [31]. It did not accept that he was targeted by AL members due to his political affiliation with BNP; that he would face lengthy imprisonment sentence if he is refouled to Bangladesh and that he would not have a fair trial in Bangladesh [36]. Based upon the above finding of the facts, the Board found that he failed to establish torture within the context of section 37U of the Ordinance [89]; BOR 3 risk and BOR 2 risk [90] and Persecution risk [66 & 88]. Finally, the Board also found that if it was wrong to make the finding of facts in relation to the above risks, the applicant still had the option of internal relocation [84-87].

Application for leave to apply for judicial review

10.In his Form 86, 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)     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 considered irrelevant facts or had failed to considered facts which were in favour of his case;

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

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

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

(11)     the Adjudicator had not found there was a pattern of gross, flagrant or mass violations of human right in Bangladesh;

(12)     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;

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

(14)     the Adjudicator was wrong in state protection in his country;

(15)     BOR 2 risk was assessed without screening;

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

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

DISCUSSION

The Board’s Decision

12.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’s findings above to him and asked if he had any comments. He did not have any comment.

13.It is quite obvious that the Board did not accept the facts in support of his claim, though it had accepted part of his story. Therefore, the applicant had no factual basis for his claim. The Board is the final finder of facts. Nupur Mst v. Director of Immigration [2018] HKCA 524, para.14. Those grounds above are quite irrelevant. Nevertheless, I shall deal with them.

14.Grounds (1), (2), (3) and (15) fail as they are inconsistent with what the applicant said before this Court.

15.Grounds (4) to (14) are his opinion without any particulars of evidence in support of them.

16.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 (17) fails.

17.Ground (16) fails because this was raised in the Board’s hearing.

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

CONCLUSION

19.Since the applicant’s application to apply 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 16^th day of September 2019

	(Thomas WAN)
	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 16/09/2019 Shahajul Mollah 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 16/09/2019 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 3085/16/2/51/B410 The Director of Immigration Putative Interested Party’s ref. no.: QA T/C 772/10 & RBCZ 9002141/17 (formerly RBCZ 817/09) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)