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HCAL732/2018
[2019] HKCFI 536
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 732 of 2018
BETWEEN
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Mostofa Md |
Applicant |
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Alexandra Lo, Esq. |
Putative Respondent |
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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: 14 February 1981).
2. The Applicant claimed he would be killed by people of the Awami League (“AL”). He also feared he would be killed by his family members.
3. The Applicant said he joined Jamaaat-e-Islami (“Jamaat”) in 2010. He later became a campaign secretary in the party.
4. In mid-2010, some armed AL members went to the Applicant’s home. They wounded the Applicant. The Applicant went to the hospital. There he saw the assailants, who seemed to be asking the doctor not to admit him into hospital. The Applicant also received a phone call from the AL people. They threatened that if he complained to the police, they would kill him.
5. Nevertheless, the Applicant reported the matter to the police. However, the police did not accept his complaint. They threatened to arrest the Applicant if he should complain again.
6. Afterwards, the Applicant received another phone call. The caller threatened to kill him. The Applicant was scared. He left home to stay in a friend’s place and remained there for half a year. Then he returned to his home town. He tried to avoid his enemies and went home only at night. His neighbour told him the AL people had been looking for him and threatening to kill him.
7. In mid-2014, seven to eight AL members went to the Applicant’s home. The Applicant was not there. A few days later, the AL people came again and found the Applicant. There were some government officials too who claimed to be from the Rapid Action Battalion (“RAB”). The Applicant believed the RAB men came because of his political affiliation with Jamaat. They assaulted him and threatened to kill him if he continued to get involved in Jamaat’s activities. The Applicant was beaten up and lost consciousness. Those men left.
8. The Applicant did not seek assistance from the police this time because the assailants were RAB officers. He said the police would not help him.
9. In January 2016, ten odd AL people attacked the Applicant. The Applicant was injured. Again, he did not go to the hospital or make any report to the police. He said some policemen were in the vicinity when he was being attacked but they did not take any action.
10. Apart from the AL people and RAB, the Applicant also claimed that his father, stepmother and stepbrother all tried to get rid of him. His father was close to AL. His stepbrother tried to kill him in order to get the house in Chakbazar which the Applicant got from his late grandmother. His stepbrother also did not want him to inherit their father’s riches.
11. For his safety, the Applicant had left Bangladesh for India sometime between mid-2010 and mid-2014. He could not recall the duration of his stay there. The Applicant did not seek asylum in India because he thought the AL people had a good relationship with the India authorities. He later returned to Bangladesh.
12. On 21 February 2016, the Applicant left Bangladesh again. This time, he went to China. He sneaked into Hong Kong on 18 March 2016 and was arrested. On 24 March 2016, he raised a torture claim.
13. In Hong Kong, the Applicant learnt from his father-in-law in Bangladesh that the AL people were still looking for him.
14. The Applicant did not think the Bangladesh police would protect him because they would not go against people related to the government or AL.
15. The Applicant did not think internal relocation was viable. He said he had no place to live in Bangladesh. Also, the AL people could find him easily.
16. 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].
17. On 26 April 2018, the Applicant applied for leave for judicial review.
Timeline
18. Things happened in this order: –
| 2016-2-21 |
The Applicant left Bangladesh for China. |
| 2016-3-18 |
The Applicant entered Hong Kong illegally from China. He was arrested by the police. |
| 2016-3-24 |
The Applicant raised a torture claim. |
| 2016-8-29 |
The Director refused the Applicant's claim with respect to these three applicable grounds: torture risk, persecution risk, BOR3 risk. [“the Director's decision”] |
| 2017-7-12 |
The Director invited the Applicant to submit additional facts for the consideration of the fourth applicable ground: BOR2 risk. |
| 2017-7-26 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-10-19 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [“the Director’s further decision”] |
| 2017-12-29 |
The Applicant appeared before the Board for appeal. |
| 2018-3-15 |
The Board refused the Applicant's claim with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-4-26 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
19. 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.
20. 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]
21. 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
22. 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
23. The Applicant appealed to the Board. The Adjudicator interviewed him on 29 December 2017.
24. The Adjudicator found there were inconsistent and implausible features in the Applicant's allegations. His evidence was vague and flimsy. The Adjudicator found it was unlikely the Applicant would be targeted by AL or RAB because the Applicant was only a low-level supporter of Jamaat.
25. The Adjudicator considered that even on the Applicant's account of events, the alleged attacks on the Applicant were only sporadic. The Applicant had not been inflicted with ill-treatment to a minimum level of severity. The Adjudicator did not accept there was any state instigation, consent or acquiescence. She also did not accept the Bangladesh state was unwilling or unable to provide state protection to the Applicant.
26. The Adjudicator found the Applicant's claim of risk from his family members was bare assertion.
27. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk from AL, RAB or his father/stepmother/stepbrother.
28. The Applicant considered internal relocation was viable in the Applicant's case in any event.
29. On 15 March 2018, the Adjudicator refused the Applicant's appeal with respect to all the four applicable grounds.
Grounds of judicial review
30. 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.
31. The Applicant accused the Adjudicator misdirected herself; 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.
32. The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of and/or insufficient legal representation.
33. 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.
34. 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
35. The hearing took place on 6 August 2018. The Applicant was in person. A Bengali interpreter provided service in court.
36. 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 his grounds. He emphasised he had injuries on his body and there was risk in his country.
37. 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
38. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
39. 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]
40. 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 BOR2 risk in his further decision dated 19 October 2017. The Applicant had not provided additional information to the Director after the Director's decision dated 29 August 2016. The Director was entitled to go on to consider BOR2 risk without holding further interview. The Director's further decision must be read in conjunction with his earlier decision, where there was a clear analysis of the Applicant's case.
41. The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 29 August 2016. The Applicant complained there were failures by the assigned duty lawyer. However, he failed to specify what the failures were.
42. The Applicant complained there were a lack of and/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.
43. 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.
44. The Applicant complained he received the appeal bundle only a few days before the Board hearing.
45. 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.
46. 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.
47. 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.
48. The Adjudicator had considered the issues of state protection and state acquiescence. She did not accept there was any state instigation, consent or acquiescence. She also did not accept the Bangladesh state was unwilling or unable to provide state protection to the Applicant. The Adjudicator’s findings were not Wednesbury unreasonable. Actually, those were not real issues as the Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. For the same reason, there was no necessity 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.
49. There was no evidence the Adjudicator cherry-picked information or took into account outdated cases, irrelevant information, information not officially recognised or simply hearsay.
50. There was also no evidence the Adjudicator misdirected herself in law or adopted the wrong standard of proof.
51. 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. 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.
Conclusion
52. 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 7th day of March 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 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 7/3/2019
Mostofa Md
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 7/3/2019
Alexandra Lo, Esq.
Putative Respondent’s ref. no.:
USM 4737/16/9/116/B636
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1090/16 & RBCZ/9002807/17 (formerly RBCZ/11245/16)
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] 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.
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