Miraj v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 2600/2018

[2020] HKCFI 1741

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2600 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 national of Bangladesh. He came to Hong Kong on 25 February 2014 and was arrested by police on 26 February 2014. He lodged a non-refoulement claim on 2 March 2014.

2.He claimed that if refouled, his life would be endangered.

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

1.His grandfather passed away in 1985, leaving his land to his five sons, one of whom was has father. His father was then the manager of the land until he passed away in 2005. He and his two brothers inherited his father’s share of the land. Uncle Soleman Mullah (“Uncle 3”), who had strong financial background and good connection with powerful political parties locally, intended to obtain his father’s share of land. He took over the land. He, his brothers and his mother had gone to reason with Uncle 3 in relation to their father’s share of land. Uncle 3 refused to let them have their share of land. Uncle 3 had two sons. Because of this land dispute, they had animosity against each other.

2.In April/May 2006, his cousins and other people had gone to his grocery shop where they vandalized it. He got wind of this attack and left the shop before they came.

3.About a month later, his cousins came with other people. They were armed with pistol and pipe gun. He was in the shop. He saw them pull out a gun and a pipe gun. He ran out of his shop and jumped into a canal adjacent to his shop. He heard gun shots behind him. He swam underwater to the other side of the canal, unhurt.

4.  He went home. His mother told him that his son had been kidnapped by one of his cousins and his friends. He did not report to police lest they might kill his son. He sought assistance from the chiefs of the village. Later, his son was returned. But they were still looking for him. He dared not stay home. He rented a house and lived outside.

5.  A month later, whilst he, his wife and his mother-in-law were walking along the street, they were attacked by four or five people with hockey and wooden sticks. They sustained injuries. He fell unconscious on the ground. He was sent to a hospital for treatment. He knew that his cousin knew where he lived.

6.  A bomb exploded at a place near his residence. The landlord told him to move out. His wife and two children moved to his father-in-law’s house. He went to Dhaka.

7.  He was advised by his friend that his cousins arranged the previous attacks and that he should leave Bangladesh. He took his advice. By then, he had suffered psychological damage.

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 30 August 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. He attended a hearing before the Adjudicator on 2 May 2018 and 17 May 2018 respectively.

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. It found the facts below.

a.Other than paragraphs 3 (2), (3), (4) & (6) above, it accepted other grounds.

b.The Board found that there was no real risk as claimed if he returned to Bangladesh [237], [260], [270] & [284].

c.There was no evidence to show that Bangladeshi government was unwilling and/or unable to provide effective protection for the applicant [252].

d.Internal relocation such as Barisal and Dhaka was an option open to him [291].

Application for leave to apply for judicial review

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

10.He relied upon those 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;

4.the Adjudicator was unfair and had not given greater care to a self-represented claimant;

5.the Adjudicator had misdirected himself by considering that the applicant had to experience torture in the past in order to establish substantial grounds to believe that there was a real risk of torture in future;

6.the Adjudicator had applied the incorrect standard of proof;

7.the Adjudicator had considered irrelevant facts or had failed to considered facts which were in favour of his case;

8.the Adjudicator had not done sufficient research in the Country of Origin Information (“COI”) and her knowledge was not updated;

9.the Adjudicator had relied upon hearsay information and outdated material in relation to COI;

10.     the Adjudicator had cherry-picked and given undue weight on the irrelevant material, neglecting the materials favourable to his case;

11.  the Adjudicator had not considered USHR 2010, USFR 2010 and The International Commission of Jurists (ICJ) “Report on the ICJ Mission to Bangladesh” Autumn 2011, which is favourable to his case;

12.  the Adjudicator failed to fulfil his obligation to obtain the requisite documents for his adjudication;

13.  the Adjudicator was wrong in state protection in his country;

14.  BOR 2 risk was assessed without screening;

15.  the Adjudicator failed to call for psychological and psychiatric reports on the applicant; and

16.  the applicant was not legally represented before the Board, which was in breach of procedural fairness.

DISCUSSION

11.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. The interpreter at the Board had assisted him to understand the Board’s Decision.

12.I put the Board’s findings to him and asked him if he had any comments. He said that he disagreed with the Board’s Decision.

13.I do not find the Board’s Decision unreasonable, irrational or procedurally irregular.

14.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.

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.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

17.As to his grounds in support of this application, grounds (1) to (3) and (14) are inconsistent with what he said in court. Grounds (4) to (13) are his opinions without any evidence or particular in support of them. Ground (15) was not raised before the Board at the hearing and ground (16) fails in light of Re Ahmed Syed Rafiq.

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

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

CONCLUSION

20.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 29^th day of July 2020

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

Form CALL-1