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HCAL 636/2018
[2019] HKCFI 1575
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 636 of 2018
BETWEEN
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Rahaman Emran |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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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:
Order by Deputy High Court Judge Josiah Lam:
Leave to apply for judicial review be refused.
Observations for the Applicant
Background
1. The Applicant is a national of Bangladesh. He is now aged 31 (DOB: 12 October 1987).
2. The Applicant claimed he would be harmed or killed by the Awami League (“AL”). He also feared he would be arrested by the police if he returned to Bangladesh.
3. The Applicant said he was the General Secretary of the Chhatra Shibir (“CS”) in Bhanga. CS was the student wing of Jamaat-e-Islami (“JI”). JI was associated with the Bangladesh Nationalist Party (“BNP”). They were in opposition to AL.
4. The Applicant alleged he earlier joined Chhatra Dal (“CD”) in 2006, which was the student wing of BNP. He was involved in a 2007 case, in which CD clashed with the Chhatra League (“CL”), the student wing of AL. However, the case was later settled and the Applicant left Bangladesh for Malaysia for further studies in late 2007. He returned to Bangladesh in March 2011, got married and ran a mobile shop in Bhanga.
5. In 2012, the Applicant became the General Secretary of CS in Bhanga.
6. On 6 April 2013, some JI people including CS supporters instigated a rally against the AL government. The two sides clashed. The AL President of the Nasirabad Union (“PNU”) was killed. The Applicant was accused as one of the murderers (listed as the 4th defendant in the Police First Information Report).
7. The Applicant claimed he was innocent. He said he was not even in the rally. However, he was scared and dared not go to the police to explain about the situation. He feared he would be arrested so he fled to a place called Mokshidpur for several days before returning to Bhanga on 15 April 2013 to retrieve certain goods and documents. He was attacked by some AL members and got injured.
8. The Applicant fled to Mokshidpur again and stayed there for a month. He learnt the police had issued a warrant against him for the murder of PNU. The Applicant then went to Dhaka to stay with his uncle for another two months. On 5 July 2013, he left Bangladesh for Hong Kong.
9. The Applicant came to Hong Kong as visitor. He overstayed from 13 July 2013. He was arrested two months later on 16 September 2013. The Applicant lodged a non-refoulement claim on 18 September 2013.
10. The Applicant alleged he could not get state protection. He also said internal relocation was not viable as the AL people were all over the country and they were well connected.
11. In the ensuing two-tier screening process here, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
12. On 13 April 2018, the Applicant applied for leave for judicial review.
Timeline
13. Things happened in this order: –
| 2013-7-5 |
The Applicant left Bangladesh for Hong Kong. He entered Hong Kong as visitor. He was allowed to stay until 12 July 2013. |
| 2013-7-13 |
The Applicant began overstaying in Hong Kong. |
| 2013-9-16 |
The Applicant was arrested by the police. |
| 2013-9-18 |
The Applicant raised a non-refoulement claim. |
| 2016-3-11 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: torture risk, persecution risk and BOR3 risk. [‘the Director's decision”] |
| 2017-6-1 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-6-13 |
The Director received further submission from the Applicant through the Duty Lawyer Service. |
| 2017-9-6 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [‘the Director's further decision”] |
| 2018-1-23 |
The Applicant appeared before the Board for appeal. He was represented by a duty lawyer. |
| 2018-3-29 |
The Board refused the Applicant's claim with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-4-13 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
14. The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.
15. In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5]
16. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board as respondent and the Director as interested party. The Board is the putative respondent; the Director is the putative interested party.
The Director's decision
17. In his decision dated 11 March 2016, the Director did not accept the Applicant faced any torture risk, persecution risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant’s claim with respect to those three applicable grounds.
18. In his further decision dated 6 September 2017, the Director did not accept the Applicant faced any BOR2 risk. He refused the Applicant’s claim with respect to the last applicable ground: BOR2 risk.
The Board's decision
19. The Applicant appealed to the Board. The Adjudicator interviewed him on 23 January 2018. The Applicant was represented by a duty lawyer.
20. The Adjudicator noted the Applicant said in his earlier written statement that he was at the scene when PNU was killed but now he claimed alibi. The Adjudicator also noted the Applicant did not claim non-refoulement protection until he was arrested by the police two months after he had arrived and then overstayed in Hong Kong. The Adjudicator did not find the Applicant reliable.
21. Even on the Applicant's account of events, the Adjudicator considered the Applicant was not targeted by the Bangladesh state. There was no evidence of state involvement or state acquiescence of any kind. The Applicant had not sought help from the police against his alleged AL enemies.
22. The Adjudicator considered that as the Applicant claimed he had proof of his innocence in the murder case of PNU, he need not fear the Bangladesh police. The Applicant only assumed he would be convicted by the Bangladesh court against proof and then sentenced to death.
23. The Adjudicator found the Applicant had not been subjected to police brutality or ill-treatment by his enemies to the minimum level of severity.
24. After studying relevant country-of-origin information ("COI"), the Adjudicator was satisfied reasonable state protection was available to the Applicant in any event.
25. The Adjudicator did not accept the alleged AL enemies would still look for the Applicant and all over Bangladesh, so internal relocation was also viable.
26. On 29 March 2018, the Adjudicator refused the Applicant's appeal with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk.
Grounds of judicial review
27. The Applicant complained the Adjudicator failed to consider his evidence and placed undue weight on minor discrepancies to find him unreliable.
28. The Applicant said the Adjudicator should treat his appeal as a rehearing rather that than simply trying to see whether he could “find fault with the decision of the immigration officer”.
29. The Applicant complained the Adjudicator failed to consider significant matters such as relevant country-of- origin information.
30. The Applicant accused the Adjudicator of not acting fairly.
31. The Applicant also complained the Director was excused from the appeal hearing.
Court hearing
32. The hearing took place on 5 September 2018. The Applicant was in person. A Bengali interpreter provided service in court.
33. The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. He was invited to explain or elaborate those grounds. The Applicant simply said his case had not been considered properly by the Director and the Adjudicator. He repeated he faced risks in Bangladesh.
34. The Applicant was still represented by the Duty Lawyer Service in his appeal to the Board. He complained the duty lawyer did not allow him to produce to the Board a news clip of the murder case, which he was accused of. The lawyer said there was no time. Apart from that, the Applicant said he had submitted all to the Director and the Adjudicator for the consideration of his non-refinement claim.
Discussion
35. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
36. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6] Nevertheless, it is said in Re Islam Rafiqul: –
“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. 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.” [7]
37. The Applicant was still represented the Duty Lawyer Service for appeal to the Board. He complained the duty lawyer did not allow him to produce to the Board a news clip of the murder case, which he was accused of.
38. That was a serious accusation but it was not mentioned anywhere in the Applicant's affirmation or Form 86. The Applicant also lacked proof. He could not show the court the alleged video clip and how it could support his claim of risk.
39. The Applicant complained the Adjudicator failed to consider his evidence and placed undue weight on minor discrepancies to find him unreliable.
40. There was no evidence that the Adjudicator was concerned with minor discrepancies. On the contrary, the Adjudicator properly noted there was a major discrepancy in the Applicant's evidence. The Applicant said in his earlier written statement that he was at the scene when PNU was killed but now he claimed alibi. The Adjudicator had proper basis to find the Applicant’s claim unreliable.
41. The Applicant said the Adjudicator should treat his appeal as a rehearing rather that than simply trying to see whether he could “find fault with the decision of the immigration officer”.
42. The Adjudicator’s report showed the Adjudicator made detailed inquiry of the Applicant's claim on a re-hearing basis, in the presence of the Applicant and his counsel.
43. The Applicant complained the Director was excused from the appeal hearing. That was not correct. The Director was represented by an Immigration Officer and counsel from the Department of Justice.
44. The Applicant complained the Adjudicator failed to consider matters such as relevant COI. Again, that was not correct. The Adjudicator had studied relevant COI. He concluded reasonable state protection was available to the Applicant.
45. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
46. The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.
Dated the 18th day of June 2019
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(Henry Ng)
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
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Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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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)).
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Sent to the Applicant on 18/6/2019
Rahaman Emran
Applicant’s ref. no:
Nil.
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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 18/6/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 3369/16/3/174/B448
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1757/15 & RBCZ 9002155/17 (formerly RBCZ 544/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] CACV 54/2018, para 45.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570, para 14(1).
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