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HCAL706/2018
[2019] HKCFI 376
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 706 of 2018
BETWEEN
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Hossain Md Sazzad |
Applicant |
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and |
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Hong Ka-ho Arthur, Esq. |
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 38 (DOB: 3 August 1980).
2. The Applicant claimed he would be harmed or killed by people of the Awami League (“AL”).
3. The Applicant said he had supported the Bangladesh Nationalist Party (“BNP”) since 2002 when he was 22 years old. He later became the right-hand man of a local BNP leader called Rikat. AL people began to notice the Applicant.
4. Three years later, the local AL leader Monir Sheikh (“MS”) sent some people to force the Applicant to leave BNP to join AL. Those people threatened to assault or even kill the Applicant if he refused.
5. The Applicant worried about the safety of his family so he did not report the matter to the police. He just complained to his BNP leaders. The leaders merely told him to take care.
6. There was a general election in January 2014. The Applicant worked hard for BNP. Nevertheless, AL won the election.
7. A few days after the election, the Applicant was confronted by some followers of MS. They said the Applicant disobeyed their instruction. They assaulted him. The Applicant managed to escape. He moved to live in another place called Jessore.
8. The Applicant did not make any report to the police because he feared the attackers would trouble his family.
9. In Jessore, some AL people recognised the Applicant. They informed the AL people in the Applicant’s village. The Applicant had to dodge his enemies again.
10. On 6 July 2014, the Applicant left Bangladesh for China. He entered Hong Kong illegally on 7 July 2014. He was arrested on the next day. The Applicant subsequently lodged a non-refoulement claim.
11. The Applicant said he learnt from his family that the enemies were still looking for him. He did not believe the Bangladesh authorities would protect him because they sided with AL.
12. The Applicant also said internal relocation was not viable as AL had a wide network in Bangladesh, so they could locate him easily.
13. 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].
14. On 23 April 2018, the Applicant applied for leave for judicial review.
Timeline
15. Things happened in this order: –
| 2014-7-6 |
The Applicant left Bangladesh for China. |
| 2014-7-7 |
The Applicant sneaked into Hong Kong from China. |
| 2014-7-8 |
The Applicant was arrested by the police. |
| 2014-7-12 |
The Applicant filed a non-refoulement claim. |
| 2017-3-24 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) BOR2 risk and (iv) BOR3 risk. [“the Director’s decision”] |
| 2018-2-20 |
The Applicant appeared before the Board for appeal. |
| 2018-4-12 |
The Board refused the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-4-23 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
16. 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.
17. 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]
18. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Adjudicator as respondent and the Director as interested party. Thus, the Adjudicator is the putative respondent; the Director is the putative interested party.
The Director's decision
19. In his decision dated 24 March 2017, the Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 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 all the four applicable grounds.
The Board's decision
20. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 20 February 2018.
21. The Adjudicator found there was no reliable evidence that the Applicant did join BNP. The Applicant had no proof of membership. His description of the joining process and no payment of application fees were inconsistent with reliable country-of-origin information ("COI"). The Applicant had limited knowledge of BNP. The Adjudicator did not accept he was a BNP member.
22. On the other hand, the Adjudicator found that even if the Applicant was a BNP member, he was merely a grass-root level member. It was implausible the AL people would pursue him as he claimed. The Adjudicator found the Applicant had not been inflicted with severe injuries. The Applicant had stayed in Jessore for six months without being harmed. He was free to leave Bangladesh subsequently. The Adjudicator considered there was no evidence the alleged enemies really intended to harm or kill the Applicant. There was also no evidence to show the Applicant was discriminated or persecuted by the Bangladesh government. There was no state involvement or acquiescence. There was no evidence the Bangladesh authorities knew of the complained situation, which was not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). The Applicant failed to prove the Bangladesh state was unwilling or unable to protect him. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk.
23. On 12 April 2018, the Adjudicator refused the Applicant's appeal with respect to all the four applicable grounds.
Grounds of judicial review
24. The Applicant complained the Adjudicator unlawfully fettered his 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.
25. The Applicant accused the Adjudicator misdirected himself in law; failed to make sufficient inquiry; failed to consider updated or relevant country-of-origin information ("COI"); took into account outdated cases and irrelevant information; considered information not officially recognised or simply hearsay; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights; failed to call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; applied the wrong standard of proof.
26. The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of and/or insufficient legal representation.
27. The Applicant further 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.
28. Although the Applicant did not name the Director as respondent but only as interested party, he accused the Director decided on BOR2 risk without screening.
Court hearing
29. The hearing took place on 31 July 2018. The Applicant was in person. A Bengali interpreter provided service in court.
30. 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.
31. The Applicant confirmed he had submitted all the proofs he had to the Director and the Adjudicator for their consideration of his non-refoulement claim. However, he complained the Adjudicator did not give him more time to bring in more proofs from Bangladesh to prove he had indeed been tortured.
Discussion
32. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
33. 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]
34. The Applicant complained the Adjudicator did not give him more time to bring in more proofs from Bangladesh to prove he had indeed been tortured. However, he confirmed to the Adjudicator that he had no additional information to add.[8]
35. It was wrong for the Applicant to say the Director had not screened his non-refoulement claim with respect to BOR2 risk. In the Director's decision dated 24 March 2017, the Director screened the Applicant's claim with respect to all the four applicable grounds including BOR2 risk.
36. The Applicant complained there were a lack of and/or insufficient legal representation. He had been represented by the Duty Lawyer Service up to the Director's decision dated 24 March 2017.
37. 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.[9] 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.
38. The Applicant complained there were failures by the assigned duty lawyer. However, he failed to specify what the failures were.
39. 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, he was assisted by qualified interpreters while being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
40. The Applicant complained he received the appeal bundle only a few days before the Board hearing.
41. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[10] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[11], 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. There was no evidence those rules had been breached in the present case.
42. The appeal 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.
43. A few days certainly were 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.
44. The Applicant said he answered all the questions honestly in the Board hearing.[12] That would mean he knew well what was asked and how to answer. He was not confused.
45. The Adjudicator had considered the issues of state protection and state acquiescence. He referred to relevant COI and concluded there was reasonable state protection. The Applicant had not complained to the Bangladesh authorities. There was no evidence the Bangladesh state knew of the alleged situation. There was no state acquiescence of any kind.
46. The Applicant failed to show it was necessary for the Adjudicator to call for psychological or psychiatric reports or to make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights.
47. There was no evidence that the Adjudicator cherry-picked information or took into account outdated cases, irrelevant information, information not officially recognised or simply hearsay.
48. There was also no evidence the Adjudicator misdirected himself in law or applied the wrong standard of proof.
49. 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. None of the Applicant’s complaints is substantiated.
Conclusion
50. 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 21st day of February 2019
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(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
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Notes for the Applicant:
If leave has been granted, the Applicant or his 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 21/2/2019
Hossain MD Sazzad
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 21/2/2019
Hong Ka-ho Arthur, Esq.
Putative Respondent’s ref. no.:
USM 6731/17/4/7/B795
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 332/16 (formerly RBCZ 2403/14)
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).
[8] The Board's decision, para 10.
[9] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[10] 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.
[11] 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.
[12] The Applicant's affirmation, Point 10 on page 4.
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