|
HCAL407/2018
[2018] HKCFI 2573
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 407 of 2018
BETWEEN
|
Hoshen Mohammad Monir |
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:
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: 14 March 1987).
2. The Applicant claimed he would be harmed or killed by some members of the Awami League (“AL”) and the Chhatra League (“CL”). AL was the ruling party in Bangladesh. The Applicant was a member of Chhatra Dal (“CD”), which was the student wing of the opposition party, the Bangladesh Nationalist party (“BNP”).
3. The Applicant entered high school in 1998. He supported CD. Six months later, the Applicant and a few CD supporters had argument with some CL members. The CL people pressurized the Applicant and his friends to join CL. They refused and were assaulted. The Applicant was injured. The assailants were later punished by the school.
4. The Applicant was often confronted by the CL people. He was asked to join CL. The Applicant refused and the CL people would swear at him.
5. The Applicant graduated from high school in 2000. He became a member of CD formally and was appointed as the Organisational Secretary of CD in his village.
6. In 2001, BNP came into power.
7. In 2005, AL started to make troubles across the country. They held rallies and attacked BNP members. The Applicant was sent by his parents to live away from home in his maternal grandfather’s house. Nothing eventful happened to the Applicant between 2005 and 2010.
8. In late 2010, the Applicant’s father was very ill. He returned to his village to manage his father’s shop. The Applicant resumed his duty as Organisational Secretary of CD in the village.
9. In early 2011, some AL members intercepted the Applicant on the road. The Applicant refused to speak to them. One of the men hurt the Applicant with a knife. Nevertheless, the Applicant managed to escape.
10. The Applicant later reported the matter to the police but the handling officer only advised him to approach the village chairman to settle the matter. The village chairman could not help. The Applicant then left his village to go back to his maternal grandfather’s place to hide himself. Nothing eventful happened in the following three years. However, some police officers had gone to the Applicant’s home to ask of his whereabouts. The police said there were some accusations against the Applicant and they wanted to arrest him.
11. In early 2014, the Applicant received a call. The caller said he had found out the Applicant’s hiding place and would seek him out to kill him.
12. One day, six men came to look for the Applicant. The Applicant had to hide himself inside the house to avoid the men. After that, the Applicant’s maternal grandfather suggested the Applicant should leave Bangladesh for Hong Kong.
13. The Applicant left Bangladesh for China on 3 June 2014. He entered Hong Kong on 19 June 2014 illegally. He was arrested on the same day. The Applicant lodged a non-refoulement claim on 27 June 2014.
14. The Applicant said reasonable state protection was not available to him because AL became the ruling party. He did not think he could relocate to other parts of the country because AL members were everywhere.
15. 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].
16. On 13 March 2018, the Applicant applied for leave for judicial review.
Timeline
17. Things happened in this order: –
| 2014-6-3 |
The Applicant left Bangladesh for China. |
| 2014-6-19 |
The Applicant entered Hong Kong illegally from China. He was arrested on the same day. |
| 2014-6-27 |
The Applicant raised a non-refoulement claim. |
| 2016-7-8 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) BOR3 risk. [“the Director's decision”] |
| 2017-7-14 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-7-28 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-8-3 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [“the Director's further decision”] |
| 2017-12-21 |
The Applicant appeared before the Board for appeal. |
| 2018-3-7 |
The Board refused the Applicant's appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-3-13 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
18. 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.
19. 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]
20. 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. Thus, the Board is the putative respondent; the Director is the putative interested party.
The Director's decision
21. In the Director's decision dated 8 July 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.
22. On 3 August 2017, the Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk.
The Board's decision
23. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 21 December 2017.
24. The Adjudicator found there were a number of inconsistencies in the Applicant’s allegations. For example, the Applicant told the Director he was the only one in the family targeted by AL. However, he told the Adjudicator his father had been targeted by AL too. The Applicant also said to the Director he returned to his home village to visit his sick father but he told the Adjudicator he went there to see his brother, who had been beaten up severely by the AL people. The Applicant also told the Adjudicator he only stayed briefly in the village then. However, he had expressed to the Director that he stayed to manage his father’s shop. The Adjudicator further noted the Applicant first mentioned a person Mohit at the screening interview with the Director in May 2016 but he only spoke of Mohit’s involvement in the 2011 attack at the appeal stage. The Adjudicator did not accept the Applicant's explanation for the inconsistencies. She did not believe the Applicant’s claim that there was politics behind his complained situation. She did not believe the Applicant relocated himself in Bangladesh and then fled the country for fear of political persecution.[6]
25. Even on the Applicant’s account of events, the Adjudicator was not satisfied the alleged enemies had real intention to kill the Applicant.[7] The Adjudicator was satisfied reasonable state protection and internal relocation were available to the Applicant in any event.[8]
26. On 7 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. In his affirmation and Form 86, the Applicant complained the Adjudicator unlawfully fettered her discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.
28. The Applicant complained he was given the appeal bundle only a few days before the Board hearing. As such, he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said he was confused of what happened. He complained the Adjudicator failed to make appropriate arrangement.
29. The Applicant also complained the Adjudicator relied on outdated cases and information not officially recognised or simply hearsay.
Court hearing
30. The hearing took place on 9 July 2018. The Applicant was in person. A Bengali interpreter provided service in court.
31. The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. The Applicant had nothing to add to those grounds.
32. The Applicant confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
33. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
34. 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’.[9] 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.” [10]
35. The Applicant mentioned he was not legally represented for appeal to the Board. He had been represented by the Duty Lawyer Service (“DLS”) up to the Director's decision dated 8 July 2016.
36. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[11] The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
37. The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant was assisted by qualified interpreters when he was still represented by DLS and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
38. The Applicant complained he received the appeal bundle only on 14 December 2017 before the Board hearing scheduled for 21 December 2017.
39. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[12] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[13], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.
40. The appeal bundle was served on the Applicant 7 calendar days (or 6 working days) prior to the Board hearing. It was served on the Applicant in time.
41. The bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.
42. A few days were certainly not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing.
43. The Applicant said he answered all the questions honestly in the Board hearing.[14] That would mean he knew well what was asked and how to answer. He was certainly not confused.
44. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She 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 of the case. She 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. None of the Applicant’s complaints is substantiated.
Conclusion
45. 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 the review.
Dated 11th day of December 2018
|
(Alan Ngan)
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 his 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 11/12/2018
Hoshen Mohammad Monir
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 11/12/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4179/16/7/149/B573
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 70/16 & RBCZ 9002801/17 (formerly RBCZ 2312/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
|
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] The Board's decision, paras 12-13.
[7] Ibid., para 23.
[8] Ibid., paras 24-28.
[9] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[10] CACV 219/2018 [2018] HKCA 570, para 14(1).
[11] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[12] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.
[13] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her personal capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.
[14] The Applicant's affirmation, Point 8 on page 4.
|