Case Document

100%Judiciary

HCAL 2206/2018

[2022] HKCFI 2223

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2206 of 2018

BETWEEN
	Bhuiyan Momin	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 Applicant being absent 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.The applicant applies for leave to apply for judicial review of the Decision dated 20 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for him. However, due to COVID-19 pandemic, the government discouraged social gathering and the court had to suspend hearings for a period of time. The court sent a letter to the applicant and invited him to make further submissions in order to dispense with hearing in court. The letter further said that if he takes the view that it is not possible to make written submissions in place of oral hearing, he should so inform the court, stating his reasons why this is the case and if he does not respond to the letter within 7 days, the court will proceed to consider his application on paper. The written decision will be sent to the applicant in due course.

3.The applicant replied to the Court’s letter and said that he needed a hearing without stating the reason.

4.Under Order 53 rule 3(3) of the RHC, it provides:

“The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application….”

Under Order 1A rule 1(b) of the RHC, the underlying objectives of the rules are to ensure that a case is dealt with as expeditiously as is reasonably practicable. Under Order 1B rule 1(l), the court has the power to take steps to make any order for the purpose of managing the case and furthering the underlying objectives set out in Order 1A. I consider that the court has the power to dispense with open hearing of the applicant’s application without doing injustice to his application. I therefore proceed to consider his application on paper.

The applicant

5.The applicant is a national of Bangladesh. He entered Hong Kong illegally and was arrested by the police on 25 November 2013. On 27 November 2013, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by the Awami League (“AL”).

6.According to the applicant, he became a member of Jamaat-e-Islami (“JEI”) in 2008 or 2009 under his family’s influence. One day in 2009, he was stopped by the AL members who asked him to join the AL before the election. Met with the applicant’s refusal, the AL members attacked him with hockey sticks. Thereafter, he was again attacked by AL members in two or three occasions. In addition to the alleged political dispute, the applicant also feared that he would be harmed or killed by his parental uncle for a land dispute. The applicant claimed that his father bequeathed a piece of land to him in around 1992 or 1993. In August 2011, his uncle, together with six sons, attacked the applicant’s family for their refusal to leave the land. In various subsequent occasions, the applicant was attacked and threatened by his uncle. The applicant’s report to the police was of no avail. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 19 of the Notice of Decision dated 7 March 2017 by the Director (the “Director’s Decision”) and paragraphs 6 to 9 of the Board’s Decision.

The Director’s Decision

7.The Director considered the applicant’s claim in relation to the following risks:

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

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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 way of the Director’s Decision, the Director dismissed the applicant’s claim on the basis that the alleged risk of harm was unsubstantiated. In elaboration, the Director found that (i) the applicant’s omission in leaving the fear from his uncle in the written signification undermined his credibility [32]; (ii) his evidence about JEI was vague and inconsistent [33]; (iii) it was unlikely that his uncle would target him as he and his brother had equal shares of the land [34]; (iv) the country of origin information (“COI”) defeated the applicant’s assertion that the state protection was not available to him [35]; (v) internal relocation was a viable alternative [36].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 25 June 2018, the Board conducted an oral hearing for his appeal, during which he answered the inquiries with the assistance of an interpreter [5].

10.Having considered the applicant’s evidence, the Board refused to accept them. The Board noticed that the applicant provided inconsistent accounts in the various interviews before the Director and these inconsistencies were not resolved in the written submissions prepared by his legal representatives [23]. It considered the applicant’s evidence at the hearing to be vague [24]. In particular, whilst he claimed to be a member of JEI, he could provide little details about JEI [25]. When asked about the encountered difficulties and the land dispute, the applicant claimed that he could not recall [26]-[28]. As a result, the Board attached no credence to the material aspects of his claim and rejected to accept the applicant as a witness of truth.

11.For these reasons, the Board rejected his claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

12.The applicant has filed Form 86 on 11 October 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant set out his grounds. Also, the applicant has attached a separate statement to Form 86 with his grounds in support of his application. I shall summarize the grounds below.

(1)   The hearing bundle was sent to him 6 days before the hearing and the contents are in English. He did not have sufficient time to prepare for the hearing, resulting in being confused at the hearing.

(2)   He had answered all questions from the Board, it is unfair and unreasonable for the Board to say that his credibility was questionable.

(3)   The Board had relied upon the news, the source of which is not officially recognized or it is simply hearsay. It has also relied upon outdated cases, resulting in it making groundless speculations that it is safe for him to return to his country.

(4)   The Board had unlawfully fettered its discretion by refusing his appeal.

(5)   For the reasons above, the adjudicator acted in a procedurally unfair manner and the decisions are unreasonable and irrational in public sense.

(6)   The Board failed to meet the greater care and duty owned to a self-represented claimant.

DISCUSSION

14.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

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.Those grounds in paragraph 13 above are not valid reasons to challenge the Board’s Decision.

18.Ground (1) fails because there was no application to the Board for an adjournment of the hearing because he did not have sufficient time to prepare his case. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 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 [22]. Also, the Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held: “Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.” He has also asserted that he had answered all the questions from the Board, which shows that he was not confused at the hearing.

19.Ground (2) fails as the Board is entitled to assessed his evidence in accordance with legal procedure. It has no obligation to believe his evidence without testing.

20.Grounds (3) to (6) are only his bare assertions or opinions without any evidence in support.

21.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

23.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 3^rd day of August 2022

(M.O. WONG)(Ms)
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 3 August 2022 Bhuiyan Momin 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 3 August 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 6525/17/3/180/B782 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1984/15 (Formerly RBCZ/931/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)