Case Document

100%Judiciary

HCAL 1971/2018

[2020] HKCFI 1570

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1971 of 2018

BETWEEN

	Mahfuzul Haque	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 had come to Hong Kong and was repatriated. The last occasion, he was arrested by police on 2 November 2016 and was referred to the Immigration Department for investigation. On 25 November 2016, he lodged a non-refoulement claim.

2.He claimed that if refouled, he would be ill-treated or killed by his business partner, Bacchu Miah (“M”), who belonged to the Awami League (“AL”) because of a money dispute with him. He also feared that he would be arrested and tortured by the Bangladeshi police because of his involvement in the political strikes during the election period in Bangladesh in 2014.

3.He set out in his statement the incidents that led him to leave his country for Hong Kong. All incidents happened between 2010 and June 2014 as set out below.

a.In 2010, he had a business partnership selling construction materials with M. He invested 500,000 Taka.

b.In early 2014, because of the frequents strikes, which affected the business, he asked M for release from the partnership, returning 500,000 Taka to him. M refused. He intended to forfeit his money. M was related to AL, the ruling party. However, the partnership business ceased in January 2014.

c.In January 2014, there was a political election. He assisted BNP. He did not commit any crimes during the campaign. However, his other members stopped cars and burned them. AL won the election and started to arrest BNP people.

d.He was afraid that he might be involved. He fled to stay in various places: Manikganj, Mohammadpur and Bhola. However, he was told by his brother that police were still looking for him. He was afraid that M might give information to police to arrest him in order to forfeit his money for the investment.

e.In June 2014, he came 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 17 February 2017, (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director assessed that his claimed risk of harm upon return was low. See paragraph 15 of the Director’s Decision. State protection was available to him [16-18]; and relocation was an option open to him [21].

The Board’s Decision

6.The applicant appealed to the Board against the Director’s Decision and he appeared before the Board on 11 June 2018.

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

8.The Board considered the applicant’s evidence with cross-examinations. For the reasons that it set out in its Decision [52-185], it considered that the applicant was not a credible witness in general and it considered that the core of his narrative was not true [185]. It also agreed with the Director’s view that relocation was an open option to him [199].

Application for leave to apply for judicial review

9.The applicant filed Form 86 on 19 September 2018 for leave to apply for judicial review of the Board’s Decision.

10.He relied upon the grounds attached to Form 86, which I shall summarize 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; and

4.the Adjudicator had relied upon unrecognized or hearsay information and outdated material in relation to COI and his assessment was speculative.

DISCUSSION

11.The applicant appeared before me and he confirmed that he was free to advance his case before the immigration officer and the Adjudicator. His lawyer had explained the Director’s Decision to him. His friend had assisted him to understand the hearing bundle and the Board’s Decision.

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

13.It is quite obvious that whilst the Director had not challenged his evidence on the facts and assessed his claimed risk was low, the Board went further to challenge the veracity of his evidence on the facts. The Board rejected his evidence, which means that he has no factual basis in support of his claim.

14.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.

15.The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held that lack of language assistance is not a ground for judicial review.

16.The Court of Appeal in 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.The grounds above are irrelevant. They cannot stand in light of the above authorities. Ground (4) is only his opinion without any evidence in support of it.

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 for leave to apply for judicial review.

Dated the 16^th day of July 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 16/7/2020 Mahfuzul Haque 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 16/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 6379/17/3/34/B768 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3348/16(formerly RBCZ/13649/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)