Case Document

100%Judiciary

HCAL 2998/2018

[2020] HKCFI 1003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2998 of 2018

BETWEEN

	Islam Ashraful	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

The applicant

1.The applicant is a Bangladeshi national. He came to Hong Kong illegally on 14 March 2014, the same day he was arrested by police. On 19 March 2014, he lodged a non‑refoulement claim.

2.He claimed that if refouled, he would be killed by the members of the Awami League (“AL”) owing to the fact that he was a member of Chatra Dal, the student group of Bangladesh Nationalist Party (“BNP”).

3.He had mentioned two incidents in Bangladesh, which caused him to leave his country and fled for Hong Kong. The first incident happened in mid-2011 where there was an election for Tontor Union Chariman. The AL group announced victory, but his group took the view that the election was raked. His group did not recognize the result and they had a fight with the AL members. Each group had about 15 to 20 people. Police came and one officer was injured. He and another member fled. He went home, but was told that police were coming for him. He went to Dhaka to stay in his friend’s place. The second incident took place in March 2014 where the BNP member won the election as chairman of Shreenagar Police Station. He and his group of people went celebrating in the street. Sixty to seventy AL members came to attacked them with sticks and knives. His left elbow was twisted and he had sustained bruises. However, he managed to escape. He went to Dhaka and other places at his friends’ homes. He decided to leave the country. He was advised to come to Hong Kong.

The Director’s Decision

4.The Director considered his application in relation to the following risks:

a.     torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);

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”).

5.By Notice of Decision dated 5 April 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

6.The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 16 August 2018.

7.By Decision dated 3 December 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

8.The Board considered the applicant’s evidence. It came to the conclusion that those incidents were fighting for the sake of antagonism, not for political opinion argument [29]. The Country of Origin Information showed that there would be state protection for the applicant if he returned to Bangladesh [31]. Also, the Board found that the incidents were local incidents. The option of internal relocation was open to him [32]. The applicant has stayed in Hong Kong for four and a half years. The AL members should have forgotten about him [36]. The applicant had not established that he had genuine and substantial risk to life to face in Bangladesh [37].

9.The Adjudicator came to the above conclusion having applied the relevant statutory provisions and the Convention to the facts above.

Application for leave to apply for judicial review

10.He filed Form 86 dated 28 December 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he relied upon the grounds below:

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 Board did not notify him by phone as requested;

5.     the Board relied on hearsay evidence, outdated cases to speculate that he would be safe if he returned to Bangladesh;

6.     BOR 2 risk was not screened; and

7.     the Board had not made proper enquiry and did not understand his situation.

DISCUSSION

12.The applicant appeared before me. He confirmed that he was free to tell his stories before the Immigration officer and the Adjudicator. His lawyer had explained the Director’s Decision to him. His friend had explained the hearing bundle and the Board’s Decision to him.

13.I put the Board’s findings to the applicant and asked for his comments. He said that he had no comments.

14.The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 held:

“14. The Director and the Board alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.”

15.The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant does not have the absolute right of free legal representation at every stage of the proceedings.

16.He complained that BOR 2 risk was screened by the immigration officer without a hearing. In his case, BOR 2 risk was assessed in one screening before the immigration officer. This ground is obviously wrong.

17.It is obvious that the Board refused his appeal on the basis that the facts he claimed would not satisfy the requirements under the relevant statutory provisions and the Convention. As such, all his grounds are irrelevant.

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

CONCLUSION

19.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.

Dated the 2^nd day of June 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 2/6/2020 Islam Ashraful 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 2/6/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 6833/17/4/109/B804 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3322/16 (formerly RBCZ/3000176/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)