SUMON MIAH v. CHRISTIAN PATRICK CARNEY, ESQ.

HCAL794/2018

[2019] HKCFI 864

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 794 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)

Following:

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 49 (DOB: 6 February 1970).

2.  The Applicant claimed he would be harmed or killed by some shopkeepers in his country because he owed them money.

3.  The Applicant said he partnered with a man called Bablu to run a pipe shop. Bablu was rich. He also hung around with gangsters. Their business started in 2002. Bablu looked after the account and supplies. The Applicant took orders from customers.

4.  In May 2002, the Applicant received orders from six shops. They ordered 20 tonnes of iron pipes to be delivered by November 2002. The Applicant signed the contracts in his own name instead of his shop’s name. The shopkeepers paid the Applicant the full price of 10 lakh taka. 

5.  When the deadline was due, Bablu was only able to deliver some of the goods to the shopkeepers. He told the Applicant that the business was short of cash.

6.  Between 2002 and 2003, Bablu only managed to deliver 4 tonnes of pipes to the shopkeepers.

7.  In 2004, the shopkeepers kept chasing the Applicant for the outstanding goods. The Applicant talked to Bablu. Bablu refused to return the money he had obtained. He threatened the Applicant not to pursue him.

8.  In April 2005, the Applicant asked Bablu to explain the account as he had not received profit from the business for a long time. One of Bablu’s friends threatened to kill the Applicant. That man was carrying a pistol with him at that time. The Applicant was scared. He decided to leave the business and stopped going to the shop.

9.  In May 2007, the Applicant again told Bablu that the shopkeepers were asking for their money back. Bablu said in a threatening manner that he would not return the money.

10.  The shopkeepers held the Applicant responsible for their loss. The Applicant could do nothing. He left his place in May 2007 for Dhaka to live with his sister. Nothing eventful happened there.

11.  The Applicant feared the shopkeepers would eventually find him and harm him. He left Bangladesh for China on 29 November 2007.

12.  The Applicant entered Hong Kong illegally four months later on 2 April 2008. He was arrested on 24 August 2008. He raised a non-refoulement claim on 27 August 2008.

13.  The Applicant did not contact his family for the fear that the shopkeepers would find out where he was.

14.  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].

15.  On 7 May 2018, the Applicant applied for leave for judicial review.

Timeline

16.  Things happened in this order: –

2007-11-29	The Applicant left Bangladesh for China.
2008-4-2	The Applicant entered Hong Kong from China illegally.
2008-8-24	The Applicant was arrested by the police.
2008-8-27	The Applicant raised a non-refoulement claim.
2017-8-18	The Director refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk. [‘the Director's decision”]
2018-1-22	The Applicant appeared before the Board for appeal.
2018-4-6	The Board refused the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”]
2018-5-7	The Applicant applied for leave for judicial review.

Respondent/Interested party

17.  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.

18.  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]

19.  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

20.  In his decision dated 18 August 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 non-refoulement claim with respect to all the four applicable grounds.

The Board's decision

21.  The Applicant appealed to the Board. The Adjudicator interviewed him on 22 January 2018.

22.  Soon after the Adjudicator had started the inquiry, the Applicant indicated he did not want to say anything else. He said he would rely on what he had already told the Director.

23.  The Adjudicator found the Applicant was confused, vague and inconsistent on his employment and business history in Bangladesh. He was also inconsistent on his contact with his family after he had left the country.

24.  The Adjudicator found the Applicant’s claim incredible. He did not accept the Applicant had ever been subjected to harm or threat. The Adjudicator found there were no substantial grounds to believe the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3.

25.  On 6 April 2018, the Adjudicator refused the Applicant's appeal with respect to all the four applicable grounds.

Grounds of judicial review

26.  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.

27.  The Applicant accused the Adjudicator misdirected himself; 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 violation 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.

28.  The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of or insufficient legal representation.

29.  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.

30.  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

31.  The hearing took place on 9 August 2018. The Applicant was in person. A Bengali interpreter provided service in court.

32.  The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. The Applicant had nothing to add to his grounds.

33.  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

34.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

35.  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]

36.  It was wrong for the Applicant to say the Director had not screened his non-refoulement claim with respect to BOR2 risk. The Director screened the Applicant's claim with respect to all the four applicable grounds including BOR2 risk.

37.  The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 18 August 2017.  The Applicant complained there were failures by the assigned duty lawyer. However, he failed to specify what the failures were.

38.  The Applicant complained there were a lack of or insufficient legal representation. 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.[8] 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.

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, the Applicant was assisted by interpreters when he was 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’[9] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[10], 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 the rules had been breached.

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 Adjudicator had not considered the issues of state protection and state acquiescence. He did not have to as he found the Applicant's claim incredible and there were no substantial grounds to believe the Applicant faced any risk that warranted non-refoulement protection. As such, state protection, state acquiescence or internal relocation were not real issues.

45.  For the same reason, there was no necessity to call for psychological or psychiatric reports.

46.  Nevertheless, the Adjudicator studied relevant COI. He did not accept there existed in Bangladesh a consistent pattern of gross, flagrant or mass violation of human rights.

47.  There was no evidence 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 adopted 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.

Conclusion

50.  The Applicant's complaints are not reasonably arguable. He has no realistic prospect of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.

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

[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] CACV 284/2017 Re Paswan Shibu Lal, para 21.

[9] 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.

[10] 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.