Case Document

100%Judiciary

HCAL 1744/2018

[2020] HKCFI 1113

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1744 of 2018

BETWEEN

	Hossain Mohammed Ismail	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent

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 the applicant’s application for leave to apply for judicial review of the Decision dated 22 August 2018 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 (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to him. 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 20 September 2019.

The applicant

3.The applicant is a national of Bangladesh. He was found at the Lo Wu Control Point on 20 August 2013. He was suspected of entering Hong Kong illegally and a removal order was issued against him. He lodged his non-refoulement claim on 28 September 2013.

4.He claimed that if refouled, he would be harmed or killed by Titu and Ahsanullah because of a land dispute. Ahsanullah is his grandmother’s brother’s son and Titu is Ahsanullah’s son-in-law. After his grandmother’s death, her land was equally distributed to five of her sons, including his father. Before the land was registered in their names, Ahsanullah started an action for the land. On 26 February 2005, the court decided that the land should belong to his father and his other four brothers. Ahsanullah filed an appeal and the result was yet known at the time of the interview between the applicant and the immigration officer.

5.He claimed that he came to Hong Kong because of the events below.

a.     Ahsanullah gathered 150 to 200 people to gather outside his house and they had a fight with weapons like axes, iron rods and wooden sticks. His mother, his cousin and himself were injured. They had to be hospitalized. They reported to police. Police did not make investigation into the matter.

b.     In 2008, whilst he was on a train, he was pushed onto the track by two men. He was then attacked and felt dizzy. The matter was reported to police. Police caught those men. They admitted that they were hired by Ahsanullah to attack him.

c.     He was a supporter of Jamaat whilst Ahsanulla was a supporter of the Awami League (“the AL”). In 2008, the AL came into power. The Jamaat supporters were hunted by AL and were killed.

d.     He was assisted by his mother to flee to China in 2011where he stayed for over a year. In November 2012, he returned to Bangladesh to see his family. He was also confronted by Ahsanulla there. He went back to China and ended up at Lo Wu Check Point being arrested by police.

The Director’s Decision

6.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”).

7.By Notice of Decision dated 14 August 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 27 March 2018, 11 April 2018 and 23 April 2018 respectively.

9.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

10.The Board considered the applicant’s evidence. It found the facts below.

a.     Basically, it accepted the facts as stated in paragraphs 4 and 5 above.

b.     However, because of other minor details, which are unimportant to the claims as raised by the applicant, the Board concluded “there are serious credibility problems such that I am unwilling to attach any credence regarding his narrative.” [197].

c.     Absanullah and Titu did not intend to kill him or his family [215].

d.     State protection was available to the applicant [216].

e.     The harms as mentioned by the applicant did not amount to torture and the state was not involved in the incidents [232]; the harms amount neither to BOR 3 risk [247] nor to Persecution risk [265]. He could not claim BOR 2 risk [276].

f.     Internal relocation to Chittagong and Dhaka was an option open to him [263].

Application for leave to apply for judicial review

11.The applicant filed Form 86 dated 27 August 2018 for leave to apply for judicial review of the Board’s Decision.

12.He did not set out any reasons in his affirmation to show where the Board’s Decision is wrong. He simply said that he was not satisfied with the Board’s Decision.

DISCUSSION

13.The applicant appeared before me and he confirmed that he was free to express himself before the immigration officer and the Board. His lawyer had explained the Director’s Decision to him. His friend had assisted him to understand the Board’s Decision.

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

15.I agree that the Board’s Decision may not be clear to the applicant. On the one hand, it said that it accepted the main facts as claimed by the applicant. On the other hand, it said that there were serious credibility problems such that the Adjudicator was unwilling to attach any credence regarding his narrative. It is unclear what the Adjudicator meant by “his narrative”. Having gone through the reasons, I can understand that “his narrative” dose not refer to the main facts because the Adjudicator had accepted them. These facts constitute the claims in support of the applicant’s case. It therefore refers to other minor facts of the applicant’s case. In his subsequent analysis of the case, the Adjudicator seemed to base upon his acceptance of the main facts in support of the applicant’s case.

16.Because of the ambiguity, I had considered the Director’s Decision as well. I find that the Director’s findings are more or less the same as the Board’s findings, save that the Board had gone into other minor details, which the Director did not consider to be relevant for his consideration of the applicant’s claim.

17.The Board’s Decision would be clearer if it adopted the Director’s finding of the facts, which I shall further elaborate in my observations at the end of this Decision, I do not find the Board’s Decision unreasonable, irrational or procedurally irregular.

18.The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 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.

19.The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018 at §42 held that the Board’s Decision is final, subject to judicial review. However, there is no evidence to show that the Board was unfair or unreasonable that requires the Court’s intervention.

20.I have taken into account of the observations below. They do not affect my conclusion.

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

CONCLUSION

22.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.

OBSERVATIONS

23.The observations below are to bring the Adjudicator’s attention to those issues that are concerns of this Court with a view to assisting this Court to focus its attention on the issues in question for a more expeditious disposition of the application and to save costs and time.

24.In the Board’s Decision, the Board has not set out the reasons of appeal, which the applicant should have set out in the Notice of Appeal for his appeal. This is probably due to the fact that the Board considered that it would hear the evidence afresh and make the finding of facts itself as can be seen in paragraph 9 of its Decision.

25.This Board’s Decision runs to 71 pages, having gone through 3 days’ hearing. The Director’s Decision runs to 28 pages of font 12 words. One can see at once the time and costs incurred for such protracted process of hearings and preparation of the Director’s Decision and the Board’s Decision respectively. Now the Board has totally discarded the Director’s Decision. But the Board has not given any reason for not being able to rely upon the evidence which was given by the applicant to the immigration officer in the unified screening mechanism, such that he had to take the evidence afresh from the applicant in the hearing. The Board has not explained how it would guard against the applicant of giving evidence at the hearing different from the evidence given before the immigration officer. As it turns out, I find that the facts in support of the applicant’s case as found by the Director are very similar to those found by the Board except for some minor details which are of no importance. In my view, the Board should have adopted those facts without hearing the evidence afresh.

26.Schedule 1A of the Ordinance has provided the appropriate mechanism for the appeal system of the Board. Under section 37ZS of the Ordinance, the applicant has to file the Notice of Appeal in a form specified by the Chairperson of the Appeal Board. Under section 2 of the Notice of Appeal, the applicant is required to set out all grounds of the appeal, giving reasons and details in support of those grounds such as why he disagrees with the decision of the immigration officer being appealed against. The Notice of Appeal also gives warning to the applicant that under section 42(1)(a) of the Ordinance, he commits an offence if he knowingly gives false statement or statement that he believes not to be true.

27.There is simply no reason why the Board could not rely on the reasons in the Notice of Appeal.

28.The Board stated at paragraph 9 that this was a rehearing of the non-refoulement protection claims and the Board heard the non-refoulement protection claims afresh. The decision was made on the basis of the evidence that had been adduced at the rehearing. It is quite obvious that the Adjudicator had followed the decision in AM v The Director of Immigration HCAL 102/2012.

29.I have, in my previous Decision by way of Form Call-1 in Rahman Mohammad Arifur v Li Kwok-wai, the Adjudicator of the Non-Refoulement Claims Petition Office and Director of Immigration HCAL 1076/2018, [2018] HKCFI 2726, discussed whether the above Judgment advised the Board to re-hear de novo for every case appealed to it. In this case, the Board took this mechanistic approach and brushed aside the Director’s Decision and the grounds of appeal prepared by the applicant’s legal representative. It simply reheard the case afresh. In its Decision, it did not even set out the grounds of appeal.

30.I disagreed to the Board’s view above because to do so indiscriminately will incur extra costs and time, which is contrary to the spirit of the Civil Justice Reform applicable to all legal proceedings within the Judiciary. I see no reason why this spirit should not apply to the proceedings in the Torture Claims Appeal Board too. If the costs of the Board are to be taxed by the Court, the Court will have to apply this spirit to the works of the Board as well.

31.I shall reiterate my views by reciting paragraphs 17, 18 and 19 in Rahman below.

“17. In AM, the court set out the ways re-hearing may be done. At paragraph 30 of his judgment, the learned judge said:

‘ A rehearing can take different forms. It can take place just on the papers or it can involve the calling of witnesses. Given the fact that it is clearly anticipated that the Adjudicator is expected to resolve issues of credibility and for this purpose should conduct an oral hearing, there will be occasions when the adjudication process will require the calling of witnesses and the taking of evidence. But, this will not always be the case. …’

18. It should be noted that there was no issue of credibility in the Board’s finding. Given the supervisory role of the Board and the flexible ways of the re-hearing, the Board should not, in my view, simply brush aside the grounds of appeal submitted by the applicant.

19. In my opinion, the Board should discharge its supervisory duty to consider the applicant’s appeal against the Director’s Decision. The Board may consider the same evidence before the immigration officer. The Board may also consider other evidence as provided under Section 18 (2) of Schedule A of the Ordinance. As to what way the Board should adopt, it is entirely the Board’s discretion. That is to say, whether the Board will re-hear the applicant wholesale or any part or parts of the applicant’s evidence before the immigration officer, which he wants to clarify, it is within his power to do so. But he may have to give his reasons if he is to have a wholesale re-hearing of the evidence because his decision to ignore the evidence given by the applicant to the immigration officer, which he is entitled to consider and rely upon for his determination, will incur extra time and cost.”

32.Here, in this case, the Board had not set out the grounds of appeal. It would be difficult for this Court to consider whether the Board agreed with the Director’s Decision. Either the Board agrees or disagrees with the Director’s Decision, it has to give reasons for its decision and this Court will have to decide whether the Board was reasonable or rational in making its decision. I have therefore referred to the Director’s Decision in order to see the fact myself.

33.I hope the Adjudicator will take into consideration the points above when he makes assessment of the appeals before him in future. I have yet another application for leave to apply for judicial review against his decision in another case before me.

Dated the 10^th 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 10/6/2020 Hossain Mohammed Ismail 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 10/6/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 8226/17/8/264/B940 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)