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HCAL282/2018
[2018] HKCFI 1777
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 282 of 2018
BETWEEN
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Hossain Md Iqbal |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
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 36 (DOB: 5 December 1981).
2. The Applicant claimed that he would be harmed or killed by bus workers belonging to the Awami League (“AL”).
3. The Applicant himself was a member of the Bangladesh Nationalist Party (“BNP”). He was a bus supervisor. In the bus company, there were some workers supporting BNP and some supporting AL.
4. In mid-2010, some AL bus workers prevented their BNP colleagues from driving out buses onto the road. A fight broke out. The AL bus workers threatened to kill their BNP colleagues. Police came. During the chaos, the Applicant might have hit some police officers and thus annoyed the police. He was arrested and brought to the police station. He was detained for a few days before being granted court bail.
5. The Applicant returned home. He did not report to the court for fear he would be further detained. He also did not go to work in order to dodge his enemies. He stayed home for a year.
6. In mid-2011, the Applicant moved to live with his uncle for two months. He still did not feel safe. He planned to leave the country.
7. On 10 November 2013, the Applicant left Bangladesh for China by air. He finally came to Hong Kong in late May 2014.
8. The Applicant did not seek help in Bangladesh. He thought the Bangladesh police would not assist BNP people because BNP was not in power. He did not think internal relocation was viable.
9. The Applicant said the Bangladesh police were still looking for him because he had jumped court bail. The AL people were also looking for him in order to kill him.
10. The Applicant claimed the situation in Bangladesh had become worse after 21 November 2015 when two opposition leaders were hung to death. One was a BNP leader.
11. 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 (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
12. On 22 February 2018, the Applicant applied for leave for judicial review.
Chronology of events
13. Things happened in this order: –
| 2013-11-10 |
The Applicant left Bangladesh for China by air. |
| 2014-5-29 |
The Applicant entered Hong Kong from China illegally. |
| 2014-5-30 |
The Applicant was arrested by the police. |
| 2014-6-3 |
The Applicant raised a non-refoulement claim. |
| 2016-2-11 |
The Director interviewed the Applicant. |
| 2016-3-30 |
The Director refused the Applicant's claim with respect to these three applicable grounds: torture risk, persecution risk and CIDTP risk (BOR3 risk). [“the Director's decision”] |
| 2617-6-6 |
The Director invited the Applicant to submit additional facts for the consideration of life risk (BOR2 risk). |
| 2017-6-20 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-7-3 |
The Director refused the Applicant's claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director's further decision”] |
| 2017-9-11 |
The Applicant appeared before the Board for appeal. |
| 2018-2-15 |
The Board refused the Applicant's claim with respect to all the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk). [“the Board’s decision”] |
| 2018-2-22 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
14. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board as proposed respondent and the Director as interested party. Thus, the Board is the putative respondent; the Director is the putative interested party.
Director of Immigration (the Director)
15. In the Director's decision dated 30 March 2016, the immigration officer did not make specific findings on the Applicant’s credibility. However, even on the Applicant's own account of events the officer considered the level of risk of harm against the Applicant by the AL bus workers was low. He had not been inflicted with ill-treatment to a minimum level of severity. There was no real and imminent risk against him.
16. The officer found there were no substantial grounds to believe the Applicant’s complained situation was instigated, consented or acquiesced by officials or persons acting in an official capacity. The Applicant was not a target of the Bangladesh authorities. The officer did not accept the Bangladesh police would harm the Applicant.
17. The officer was aware there were reports of police misconduct in Bangladesh. However, there was objective country-of-origin information (“COI”) showing ongoing reforms in the country. There were also alternative venues for justice there. The officer was satisfied reasonable state protection was available to the Applicant.
18. The officer considered the alleged enemies were unlikely to go around Bangladesh to locate the Applicant. Internal relocation was viable.
19. The officer did not accept there was any real torture risk, persecution risk and CIDTP (BOR 3 risk). He refused the Applicant’s non-refoulement claim with respect to those three applicable grounds.
20. In the Director's further decision dated 3 July 2017, the immigration officer considered the Applicant failed to establish a personal and real risk of right to life under BOR2. He refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground of life risk (BOR2 risk).
TCAB/NCPO (the Board)
21. The Adjudicator did not make specific findings on the Applicant’s credibility. However, even on the Applicant's proclaimed account of events the Adjudicator found the Applicant had not been inflicted with ill-treatment to a minimum level of severity. His fear was not instigated by the state or government officials. There was also no police misconduct in the Applicant’s case.
22. The Adjudicator found the Applicant's situation did not arise out of a convention reason (race, religion, nationality, membership of a particular social group or political opinion). There were also no grounds for believing that he would be tortured.
23. The Adjudicator was satisfied that the Applicant would be protected by a credible system of justice in Bangladesh.
24. The Adjudicator concluded there was no real risk that warranted non-refoulement protection. He refused the Applicant's claim with respect to all the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) or life risk (BOR2 risk).
Grounds of judicial review
25. In Form 86, the Applicant complained the Adjudicator 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; relied on information not officially recognised or simply hearsay or outdated cases.
26. The Applicant complained the appeal bundle was only served on him seven days before the appeal hearing. Most documents were in English. There was insufficient time for him to prepare for the appeal due to his deficiency in English language and being unrepresented. The Applicant said he was confused as to what happened. He complained the Adjudicator failed to make appropriate arrangements regarding service of the hearing bundle.
Court hearing
27. In Form 86, the Applicant requested a hearing. The hearing took place on 11 June 2018. The Applicant was in person. A Bengali interpreter provided interpretation service in court.
28. The Applicant said that he only knew a little English and needed language assistance. A friend helped him to prepare Form 86 and the affirmation. The Applicant confirmed all the grounds of judicial review were in the documents. He could not elaborate his complaints. He merely expressed grievance that the Director and the Adjudicator did not believe him.
29. The Applicant confirmed he had submitted all the information and materials to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
30. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
31. 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’.[5]
32. The Applicant complained the appeal bundle was only served on him seven days before the Board hearing. Most documents were in English. There was insufficient time for him to prepare for the appeal due to his deficiency in English language and being unrepresented. The Applicant said he was confused as to what happened. He complained the Adjudicator failed to make appropriate arrangements regarding the service of the hearing bundle.
33. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[6] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[7], 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.
34. The Applicant said he received the appeal bundle 7 days prior to the appeal hearing scheduled for 11 September 2017. In that 7-day period, the were 6 working days. Thus, the bundle was served on the Applicant in time.
35. 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 and there was no evidence to show the appeal bundle was difficult or voluminous.
36. In court, the Applicant admitted he had a friend to prepare Form 86 and the affirmation for him. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents. I am sure that was the case at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling documents.
37. 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 the appeal. There is no evidence to show he had so complained to the Adjudicator or asked for adjournment during the appeal hearing. There is also no evidence to show the Applicant was confused as to what happened. In fact, he said he answered all the questions by the Adjudicator honestly.[8] That means the Applicant knew what was happening then and he was presenting his case as he wished.
38. There were other vague complaints against the Adjudicator. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. In my judgement, the Adjudicator had proper basis for his findings, conclusions and decisions which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. He 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 report of the Adjudicator showed he was acquainted with the facts and the law. The Adjudicator considered the Applicant’s case carefully and applied the law correctly. He was entitled to render those findings, conclusions and decisions which were all reasonable. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
39. The Director is an interested party. I have also reviewed the Director's decision and further decision under ‘rigorous examination and anxious scrutiny’. What has been said of the Adjudicator in paragraph 38 above is also true of the Director. I am satisfied that the Director's findings, conclusions and decisions were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Director had also achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
40. The Applicant's complaints are not reasonably arguable. He has no reasonable prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.
Dated 2nd day of August 2018
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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
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 2/8/2018
Hossain Md Iqbal
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 2/8/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 3443/16/4/51/B460
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2105/15 (formerly RBCZ 2006/14)
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] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[6] 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.
[7] 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.
[8] Form 86, page 4, para 9.
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