Case Document

100%Judiciary

HCAL 1761/2018

[2020] HKCFI 941

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1761 of 2018

BETWEEN

	MD Ashad Hossain	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) Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 20 December 2017 be refused; and

(2) Application for 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:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 20 December 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 3 January 2020.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting the Director of Immigration (“the Director”) and replacing him with the Board as respondent.

The applicant

4.The applicant is a Bangladeshi national. On 30 December 2007, he was arrested by police for illegally remaining in Hong Kong without the Director’s permission. On 8 January 2008, he lodged a torture claim protection with the Director. His application was then processed under the unified screening mechanism as a non-refoulement claim.

5.He claimed that if refouled, he would be harmed or even killed by members of the Bangladesh Nationalist Party (“BNP”), who had asked him to join BNP, but he refused.

6.He was a stout supporter of the Awami League (“AL”). In 1996, he was elected to be the general secretary of the local voluntary league of AL, with duties to gather supporters of the party in the area villages, covering a population of between 30,000 to 35,000 people. Since then, some members of BNP approached him and asked him to join BNP. He refused. They did not do anything to him until 2006 when he persisted his refusal, they threatened him and attacked him with sticks. He was injured on his left arm but managed to escape. He did not need medical treatment. In December 2006, he learned that three false criminal charges had been filed against him. The police came to his home and threatened his parents. He found an agent and came to Hong Kong.

The Director’s Decisions

7.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”).

8.By Notice of Decision dated 12 August 2016 and Notice of Further Decision dated 6 June 2017 (“the Director’s Decisions”), the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risk of being harmed or killed by the BNP members if he returned to Bangladesh was low [16]; that state protection was available to him [20] and internal relocation was an option open to him [21]. His claim under BOR2 risk was not established.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator on 12 October 2017.

10.By the Board’s Decisions, the Board rejected his appeal and confirmed the Director’s Decisions.

11.The Board considered the applicant’s evidence and found that his evidence was vague and inconsistent and it came to the conclusion that no credence whatsoever could be attached to any of his statements [27]. For details and analysis, see §§25-42 of the Board’s Decision.

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 28 August 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he made the complaints below.

1.     He was not educated.

2.     No lawyer was provided to him for advice.

3.     The Board decided the case on assumption, without considering the true and serious evidence.

4.     The Board should not infer that he had no case.

DISCUSSION

14.The applicant’s application is late – the Board Decision is 20 December 2017 and his application is 28 August 2018. There is a delay of about five months. The applicant requires leave from this Court to extend time for him to proceed: Re Kwok Cheuk Kin v Leung Chun Ying[2018] HKCA 419, 23 July 2018, §28.The Court has to consider whether he has merits in his intended judicial review: AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015.

15.The applicant appeared before me and he confirmed that he was treated fairly when he appeared before the immigration officer and the Adjudicator of the Board. The duty lawyer had explained the Director’s Decisions to him. The interpreter of the Board had explained the Board’s Decision to him.

16.The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage.

17.In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

18.The applicant’s grounds in support of his application are not sustainable as they are either not supported by the authority or they are his opinions without any evidence or particulars in support of them.

19.There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

20.The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

21.I therefore refuse to grant extension of time to the applicant to apply for leave to apply for judicial review. Accordingly, I dismiss his application.

FURTHER DIRECTIONS

22.It is further directed that:

a.     If the applicantintendsto 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;

b.     When filing the application for leave to appeal, the applicantmust 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;

c.     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;

d.     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

e.     Liberty to apply.

Dated the 27^th day of May 2020

	(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 27/5/2020 MD Ashad Hossain 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 27/5/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 4496/16/8/215/B608 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 9001851/17 & QA T/C 704/08 Pt.2 (formerly RBCZ 374/08) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)