HOSSAIN IKBAL v. MRS. SYDELLE MULING, ESQ [Decision on Leave Application]

HCAL 1611/2018

[2020] HKCFI 1172

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1611 OF 2018

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D E C I S I O N

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The application

1.  The applicant is an illegal immigrant and he lodged a non‑refoulement claim with the Director of Immigration (“the Director”).  The Director rejected his application and he appealed to the Torture Claims Appeal Board/Non-Refoulement claims Petition Office (“the Board”).  Having considered his evidence, the Board, by its Decision dated 7 August 2018 (“the Board’s Decision”), rejected his appeal and confirmed the Director’s Decision.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court, the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.  He had appeared before this Court.  By Order dated 18 July 2019 (“the Court’s decision”), I refused to grant him leave to apply for judicial review of the Board’s Decision for the reason that there was no reasonable prospect of success in his intended judicial review.

3.  The applicant intends to appeal to the Court of Appeal against the Court’s decision.  However, he is out of time under Order 53, rule 3(4), RHC.  The deadline for him to appeal is 1 August 2019.  He took out a summons dated 8 August 2019 for time extension for his appeal.

4.  A hearing was fixed for him to attend court for his application on 4 October 2019.  However, he was absent without prior notice or explanation.  I dismissed his summons for want of prosecution.

5.  By another summons dated 23 October 2019, the applicant applied to set aside the above ex parte order and for the Court to re-consider his application of extension of time for him to appeal the Court’s decision.

The applicant’s affirmation

6.  The applicant filed an affirmation in support of his application.  In his affirmation he submitted that he was admitted in hospital from 23 September 2019 to 16 October 2019. He had taken legal advice and submitted that he was advised that he had good grounds of appeal that were not necessary to be considered at the stage of applying for leave to appeal.

Discussion

7.  The applicant appeared before me.  He confirmed that he was in the hospital on the date of hearing.

8.  I asked him what was his reason that he considered that my decision was wrong.  He said that he had no reason to say that I was wrong in reaching my decision except to say that he had urine and toilet problems and he had to see the doctor every two or three days and that his problems in his own country had not been solved.

9.  The Court of Appeal in Re Adumekwe Rowland Ejike[2019] HKCA 702 28 June 2019 held:

“19. The prospect of success of the intended appeal is important; the court will not grant extension of time for a hopeless appeal to be pursued.”

10.  I accept his explanation for his absence on the last hearing and I set aside the ex parte order of dismissing his application for want of prosecution.

11.  However, I find that the applicant is unable to show that he has any reasonable prospect of success in his intended appeal against my decision.  Accordingly, I dismiss his application.

The Applicant appeared in person.

HCAL1611/2018

[2019] HKCFI 1796

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1611 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;      or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as interested party.

The applicant

2.  The applicant is a Bangladeshi national. He arrived in Hong Kong illegally through China on 14 April 2017 and was arrested by police on the same day. On 16 April 2017, he lodged a non-refoulement claim.

3.  In his statements given to the Director and the Board, he claimed that he belonged to a party named the Bangladesh Islami Chharta Shibir (“CS”), associated with Bangladesh Jamaat-e-Islami (“JJ”). They were under the ruling party of the Awami League (“AL”). AL was afraid that these two subordinate parties might get stronger and AL leaders and members would torpedo their gatherings each time. They came with weapons such as guns, knives and cleavers. Between 2012 and 2016, they attacked the applicant and other members. Many of them were injured and some of them were even killed. The AL people even tried to oust him from his farmland. Out of self-defence, he had stabbed one of them and he escaped from the other people in 2017. He had tried to avoid them from time to time by moving to other places. In April, 2017, he accepted his friend’s suggestion to come to Hong Kong.

The Director’s Decision

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

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

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 6 December 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 and he attended a hearing before the Adjudicator on 19 April 2018.

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

8.  The Board considered the applicant’s case and found that his evidence in relation to the time he joined CS was conflicting [53]. Also, it found that the applicant was not an active member of CS [56]; that the AL people vandalized their meetings [57]; that the AL people attempted to take over his farmland [58-61]. Finally, the Board found that he was not a witness of truth and his claims regarding his experiences in Bangladesh were not credible [65] and that he had concocted this claim in an effort to bolster his case [67]. In other words, the Board did not accept the fundamental basis of his claim [68].

Application for leave to apply for judicial review

9.  In his Form 86 dated 13 August 2018 under order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Board’s Decision.

10.  In his submissions with Form 86 and affirmation in support of his application dated 13 August 2018, the applicant relied upon the following grounds:

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

(8)  the Adjudicator had relied upon hearsay information and outdated materials in relation to COI;

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

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

(11)  the Adjudicator failed to fulfil her obligation to obtain the requisite documents for her adjudication;

(12)  the Adjudicator was wrong in issue of state protection in his country;

(13)  the Adjudicator failed to call for psychological and psychiatric reports on the applicant; and

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

DISCUSSION

The Board’s Decision

11.  The applicant appeared before me. He confirmed that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. But he is unhappy with their decisions. He also said that before the appeal hearing, he had the interpreter of the Board who explain the hearing bundle to him. He had no problem at the appeal hearing. I note that the time for him to understand the hearing bundle was very short. Having considered that he had no problem with the Adjudicator at the appeal hearing and that he said that his lawyer had explained the Director’s Decision before, I find that this factor should not cause any unfairness to the applicant.

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

13.  As to the grounds above, as the applicant is an illiterate, it is obvious that his friend had helped him to prepare them.

14.  It is quite obvious that the Board did not accept the facts as stated by the applicant in support of his claim. Therefore, the applicant had no factual basis for his claim. Those grounds above are quite irrelevant. Nevertheless, I shall deal with them.

15.  Grounds (1) to (3) fail as they are inconsistent with what the applicant said before this Court.

16.  Grounds (4) to (9), (11) and (12) are his opinions without any evidence in support of them. They fail.

17.  Ground (10) fails as he did not refer those materials to the Adjudicator at the appeal hearing. They were not mentioned in the Board’s Decision. The applicant was unable to specify why those materials would support his claim.

18.  Ground (13) fails because the applicant had not even raised this issue with the Board.

19.  The Court of Appeal in  Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah[2018] HKCA 14, Re Zahid Abbas[2018] HKCA 15, Re Tariq Farhan[2018] HKCA 17, and Re Lopchan Subash[2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.  We do not find anything amiss arising from lack of legal representation in the process before the Board.” Ground (14) fails.

20.  The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

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

Dated the 18^th day of July 2019

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