SALIM AHMED ALIAS MD SALIM v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL910/2018

[2019] HKCFI 2163

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 910 of 2018

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of documents only
	consideration of documents and oral submission by the Applicant in open court

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 43 (DOB: 15 September 1975). 

2.  The Applicant started to run a business in 2000. Chunnu Miah (“CM”) was a major client. In 2002, CM fell behind in payment. The Applicant became unable to pay his suppliers. He owed the main creditor 500,000 Takas.

3.  Probhash Chowdhury (“PC”) was the manager of the main creditor. In July 2003, he went with two men to ask the Applicant to pay up. He gave the Applicant a week’s time.

4.  One week later, PC and his men came again. The Applicant was unable to pay. He was assaulted and injured.

5.  In late 2003, PC threatened the Applicant that he would file a case to the police. He also threatened to engage the Rapid Action Battalion (“RAB”) to harm the Applicant.

6.  The Applicant went to CM to ask for money. CM refused to pay. He and a few people attacked the Applicant.

7.  The Applicant made a report to the police. The police ignored him. They told him to take his case to the Market Committee.

8.  The Market Committee did not take any action. The Applicant believed CM had influenced the committee.

9.  The Applicant hired a gangster to collect the debt from CM. The hired man feared CM and refused to carry out his duty. However, he still demanded the Applicant to pay him for the job. He threatened the Applicant.

10.  The Applicant was in fear. He moved to Dhaka and lived in various places.

11.  The Applicant later left Bangladesh. He first arrived in Hong Kong as visitor under the name MD Salim in May 2004. He overstayed from 11 September 2004 and was arrested by the police on 21 October 2004. On 5 November 2004, he was repatriated to Bangladesh.

12.  The Applicant said he faced death threats from PC upon his return to Bangladesh then.

13.  On 7 July 2005, the Applicant came to Hong Kong again as visitor. This time, he used the name Ahmed Salim. He was unable to extend his visa so he departed in November 2005.

14.  The Applicant came to Hong Kong for the third time on 20 December 2005. He made several side trips to Shenzhen and last entered Hong Kong on 2 March 2006 as visitor. He overstayed and was arrested by the police on 28 September 2006.

15.  Sometime in 2006, the Applicant had applied to UNHCR. He said he did not know the outcome.

16.  On 30 January 2007, the Applicant lodged a torture claim. However, he withdrew that claim in December 2012.

17.  In February 2013, the Applicant married an Indonesian national, who was working as domestic helper in Hong Kong.

18.  In April 2013, the Applicant applied to reopen his torture claim. He said he learnt in March 2013 that the main contractor had filed a criminal case against him. The Bangladesh police then issued a warrant for his arrest. The Applicant said if his case was referred to RAB, his life would be in danger.

19.  The Director of Immigration (“the Director”) considered the Applicant’s claim with respect to torture risk[1]. He rejected the Applicant’s torture claim on 23 October 2013. There was no appeal.

20.  On 28 October 2013, the Applicant raised a non-refoulement claim.

21.  The Applicant said the main creditor was still after him. The police and RAB were also looking for him. His family members had been harassed. The Applicant was told by his father in 2016 that the police and RAB took away his brother Al-Amin (“AA”). They injured AA, who then left home. The police and RAB went after AA. AA moved further and later became missing. The Applicant suspected AA had been killed by RAB.

22.  The Applicant said the police and RAB continued to harass his family members. His parents had to leave their home in 2017 and another brother of his was assaulted in 2017 and 2018.

23.  The Applicant said the warrant against him in Bangladesh was still valid. He feared the police and RAB would arrest him and kill him.

24.  On 31 October 2017, the Director rejected the Applicant's non-refoulement claim with respect to the remaining three applicable grounds: risk of persecution,[2]  risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3]  and risk of violation of the right to life (BOR2 risk)[4].

25.  The Applicant appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) against the Director's decision on persecution risk, BOR2 risk and BOR3 risk. The Adjudicator rejected his appeal with respect to those three applicable grounds.

26.  On 23 May 2018, the Applicant applied for leave for judicial review.

Respondents

27.  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.

28.  In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Director and the Adjudicator as respondents. The Director is the first putative respondent; the Adjudicator is the second putative respondent.

29.  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] The Applicant cannot seek leave for judicial review against the Director's decision. I shall deal with his application in relation to the Board's decision only.

The Director's decision

30.  The Director considered the Applicant’s claim with respect to torture risk. He rejected the Applicant’s torture claim on 23 October 2013. There was no appeal.

31.  On 28 October 2013, the Applicant raised a non-refoulement claim. In his decision dated 31 October 2017, the Director did not accept the Applicant faced any 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 rejected the Applicant’s claim with respect to those three applicable grounds.

The Board's decision

32.  The Applicant appealed to the Board. The Adjudicator interviewed him on 4 May 2018.

33.  The Adjudicator found there were multiple inconsistencies and implausible features in the Applicant’s allegations. The documents he produced were questionable. The Adjudicator noted the Applicant had used two different names to enter Hong Kong. He did not accept the Applicant’s claimed first identity was merely a variant of the second one. The Adjudicator found the Applicant incredible. He did not accept the Applicant faced any persecution risk, BOR2 risk or BOR3 risk. On 9 May 2018, the Adjudicator rejected the Applicant's appeal of the Director's 2017 decision on those three applicable grounds.

Grounds of judicial review

34.  The Applicant made complaints against the Director and the Adjudicator. As said in para. 29 above, I would deal with his application in relation to the Board's decision only.

35.  In Form 86, the Applicant complained the Adjudicator failed to attain the high standards of fairness and his decision was unreasonable.

36.  Before the court hearing, the Applicant sent in a two-page writing dated 27 August 2018 to detail his complaints. There were nine points. He explained them in court. (See below.)

Court hearing

37.  The hearing took place on 27 September 2018. The Applicant was in person. A Bengali interpreter provided service in court.

38.  The Applicant said a lawyer helped him to prepare Form 86 and the affirmation. He himself wrote out the two-page statement dated 27 August 2018. He explained the nine points on it as follows:

Point 1 – Referring to para. 9 of the Board's decision, the Applicant said he raised his torture claim in 2006 but the Adjudicator mistakenly thought it was 2007.

Point 2 – Referring to para. 27 of the Board's decision, the Applicant said he had suffered severe physical harm and mental stress.

Point 3 – Referring to para. 43 of the Board's decision, the Applicant said no one had asked him of his birth certificate.

Point 4 – Referring to para. 45 of the Board's decision, the Applicant maintained the data in his second passport (the one he used to enter Hong Kong in 2005) were correct. He said he never told the Adjudicator that the data on his first passport were also correct.

Point 5 – Referring to para. 46 of the Board's decision, the Applicant said “Mr. CM” there should be “Mr. PC”. The Applicant also said “RAB” was established in 2003 rather than in 2004. In court, the Applicant said RAB was previously called “RAT” – Rapid Action Team.

Point 6 – Referring to para. 55 of the Board's decision, the Applicant said he did not tell the Adjudicator that people returning from Hong Kong to Bangladesh were missing. He actually told the Adjudicator that many people in Bangladesh were missing after they had returned home because the police suspected them to be terrorists.

Point 7 – Referring to para. 50 of the Board's decision, the Applicant said the Adjudicator was wrong to find that his father could not be a plaintiff in the case of the Applicant's missing brother. The Applicant said Bangladesh had its own legal system.

Point 8 – Referring to para. 59 of the Board's decision, the Applicant said he did not speak to the Adjudicator about any 2006 bomb blast. He actually told him about a 2016 terrorist attack in a cafe.

Point 9 – The Applicant said if the Adjudicator could make so many errors as pointed out by him, it was not strange that he (the Applicant) would also make mistakes.

Discussion

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

40.  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]

41.  The Applicant complained the Adjudicator failed to attain the high standards of fairness and his decision was unreasonable. He held out nine points. (See para 38 above.)

42.  Point 1. The Applicant was arrested by the police in Hong Kong on 28 September 2006. He might have indicated to the Director of his intention to raise a torture claim in that year but on record his formal application was made on 30 January 2007. The Adjudicator was not mistaken about the year.

43.  Point 2. The Applicant said he had suffered severe physical harm and mental stress. There was no credible proof.

44.  Point 3 and Point 4. The Applicant had used two different names to enter Hong Kong with different dates of birth. He was convicted of making false statements when he entered Hong Kong under the first identity. The Adjudicator was entitled to consider the Applicant’s use of a false identity to come to Hong Kong in 2004 as a factor undermining his credibility. The Applicant’s birth certificate would not help him.

45.  Point 5. The Adjudicator indeed wrongly penned ‘CM’ for ‘PC’ in para 46 of his decision but he had stated the facts in other places which said of the 2003 threat. The mistake was insignificant. As to which year RAB was established, there was no evidence to show the Adjudicator was mistaken. In fact, the Applicant told the Adjudicator that he himself made a mistake of the year in which PC uttered the RAB threat. He changed to tell the Adjudicator it was 2004 instead of 2003.[8]

46.  Point 6. The Applicant said he did not tell the Adjudicator that people returning from Hong Kong to Bangladesh were missing. He actually told the Adjudicator that many people in Bangladesh were missing after they had returned home because the police suspected them to be terrorists. There was no evidence to show the Adjudicator was mistaken. But even if the Adjudicator misheard the Applicant here, it did not bear any significance to the Adjudicator’s decision.

47.  Point 7. The Applicant failed to adduce evidence to show the Adjudicator wrongly understood the legal system in Bangladesh.

48.  Point 8. The Applicant said he did not speak to the Adjudicator about any 2006 bomb blast. He actually told him about a 2016 terrorist attack in a cafe. Again, there was no evidence to show the Adjudicator was mistaken. And even if the Adjudicator misheard the Applicant about the year, it did not bear any significance to the Adjudicator’s decision either.

49.  Point 9. The Applicant said if the Adjudicator could make so many errors as pointed out by him, it was not strange that he (the Applicant) would also make mistakes. I do not agree with the Applicant that the Adjudicator had made many mistakes. The Adjudicator only wrongly penned ‘CM’ for ‘PC’ in para 46 of his report but that slip of the pen bore no significance to the Adjudicator’s finding of the Applicant’s credibility. After considering the facts in depth, the Adjudicator did not find the Applicant credible. He did not accept the Applicant faced any persecution risk, BOR2 risk or BOR3 risk.

50.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding 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’s report showed he 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

51.  The Applicant's complaints are not reasonably arguable. He has no reasonable prospect of success in the sought judicial review. I refuse to grant him leave to apply 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] The Adjudicator’s report, para 46.