Case Document

100%Judiciary

HCAL 1602/2018

[2019] HKCFI 2632

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1602 of 2018

BETWEEN

	Zaheer	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:

THE APPLICATION

1.This is an application taken out by the applicant pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”) for judicial review of the decisions of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as the interested party.

2.The applicant requested a hearing. The hearing was fixed at 10:00 am on 8 February 2019. However, the applicant was absent on that day.

3.By an Order dated 8 February 2019, this Court dismissed his application for want of prosecution.

4.On 21 February 2019, the applicant took out an application to appeal the said Order.

5.On 12 March 2019, this Court gave directions that a hearing be fixed at 10:00 am on 3 May 2019 and the applicant should file an affirmation to state his reasons for his absence on 8 February 2019 within 7 days from the date of the direction.

6.On 21 February 2019, the applicant filed his affirmation, saying that he did not receive the court’s judgment. But this explanation does not answer his absence on 8 February 2019. He appeared before me. He explained that he had come to court on the date of hearing. But he went to some other places. He was not directed to come to my court.

7.I accepted his explanation.

8.Under Order 32, rule 6 of the RHC, this Court has the jurisdiction to set aside an order made ex parte. Pursuant to Order 1A, rule 1 and Order 1B, rule 1(2)(l) of the RHC, I shall now treat the applicant’s application as an application to set aside the order which I made on 8 February 2019 dismissing his application. The said order is now set aside.

9.I shall now consider the applicant’s application for leave to apply for judicial review of the Director’s Decisions and the Board’s Decision.

The applicant

10.The applicant is a Bangladeshi national. He arrived in Hong Kong on 5 May 2013 illegally through China. He was arrested by police on 12 September 2013 and was referred to the Immigration Department for investigation. He lodged a non-refoulement claim on 14 September 2013.

11.In his statements given to the Director and the Board, he said that if refouled, he would be harmed or killed by some members of the Bangladesh Chhatra League (“BCL”), student Wing of Bangladesh Awami League (“BAL”) in his locality because he was an active worker of Jamat-e-Islami Party (“JIP”).

12.Between 2009 and 2013, the applicant was attacked by the BCL people by sticks, batons or even pistols. He had attempted to move to his friend’s residence to avoid them. He had attempted to report to police. However, the police did not take any action because BAL was the ruling party. He came to Hong Kong upon his friend’s advice.

The Director’s Decisions

13.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”).

14.By Notice of Decision dated 13 November 2015 and Notice of Further Decision dated 20 July 2017, collectively called (“the Director’s Decisions”), the Director refused his claim for the reason that his claim was unsubstantiated.

The Board’s Decision

15.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 19 December 2017.

16.By Decision dated 1 August 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decisions.

17.The Board considered the applicant’s case and, having considered the inconsistencies between his evidence given to the Director and to the Board and the inherent implausibility of his evidence [51-56], it concluded:

“50. Having heard the appellant’s evidence, I found him to be a thoroughly unreliable witness.”

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

19.In his affirmation in support of his application dated 10 August 2018, the applicant stated:

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; and

4.  it is unreasonable for the Adjudicator not to believe his evidence.

DISCUSSION

The Board’s Decision

20.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 had explained it to him. He understands English himself. Therefore, he understood the Board’s Decision.

21.I explained the Board’s findings above to him and asked if he had any comments. He said that he had no comments.

22.It is quite obvious that, apart from some fundamental facts such as his nationality, 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.

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

24.Grounds (1) to (3) above are inconsistent with his evidence in court. Ground (4) is his opinion without any evidence in support of it.

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 refuse to grant him leave to apply for the judicial review. Accordingly, I dismiss his application.

Dated the 25^th day of October 2019

	(Mike Mak)
	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 25/10/2019 Zaheer 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 25/10/2019 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 2616/15/11/128/B344 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1551/15 & RBCZ 9002045/17 (formerly RBCZ 534/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)