MOZAMMEL v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL698/2018

[2019] HKCFI 206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 698 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: 10 May 1975). 

2.  The Applicant claimed he would be harmed or killed by his business rival Jamal in Bangladesh. He and Jamal were rice wholesalers. Jamal’s brother was a leader of the ruling party, the Awami League (“AL”).

3.  The Applicant and Jamal were business rivals. In 2006, some gangsters began to ask the Applicant for money. The Applicant was scared and promised to pay later. He spoke to Jamal, who said he also had to pay.

4.  The gangsters repeated their extortion demand. They surrounded the Applicant's shop. The Applicant was injured during the melee. He managed to escape somehow. His friend Abdul later took him to a hospital to seek treatment. Abdul soon informed the Applicant that his enemies were coming for him.  He took the Applicant to another hospital, which was in Dhaka. The Applicant learnt his enemies continued to look for him and his shop had been looted. He believed the gangsters were sent by Jamal.

5.  The Applicant's wife reported the matter to the Union Council but the Council could do nothing. She then complained to the Bangladesh paramilitary police, the Rapid Action Battalion (“RAB”). There was no assistance either.

6.  The Applicant said Jamal had filed false allegation against him to RAB.  His enemies continued to harass his wife. She had to leave home with the children to live with her parents.

7.  After staying in the Dhaka hospital for some days, the Applicant went to live with a relative. He learnt his enemies were still looking for him. He finally left Bangladesh for China on 1 September 2006. He entered Hong Kong as visitor on 15 September 2006 and was permitted to stay for 14 days. He overstayed and was arrested by the police almost four months later on 23 January 2007. The Applicant lodged the present claim on 13 February 2009.

8.  The Applicant said his friend Abdul had disappeared. He was told by his wife that AL was in power. Jamal was connected with AL and had become more powerful. He was still looking for the Applicant. The Applicant did not believe the Bangladesh authorities would bring Jamal to justice.

9.  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].

10.  On 23 April 2018, the Applicant applied for leave for judicial review.

Timeline

11.  Things happened in this order: –

2006-9-1	The Applicant left Bangladesh for China.
2006-9-15	The Applicant entered Hong Kong as visitor. He was allowed to stay until 29 September 2006.
2006-9-30	The Applicant began overstaying here.
2007-1-23	The Applicant was arrested by the police.
2009-2-13	The Applicant lodged a non-refoulement claim.
2014-7-18	The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) BOR3 risk. [“the Director's decision”]
2017-3-7	The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk.
2017-3-21	The Applicant failed to submit any additional facts by the deadline or thereafter.
2017-3-24	The Director refused the Applicant's claim with respect to the fourth applicable ground: BOR2 risk. [“the Director's further decision”]
2017-5-15	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.

Respondents

12.  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.

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

14.  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 decisions. Therefore, I shall deal with his application only in relation to the Board's decision.

The Director's decision

15.  In his decision dated 18 July 2014, the Director did not accept the Applicant faced any torture risk, persecution 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 those three applicable grounds.

16.  On 24 March 2017, the Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk.

The Board's decision

17.  The Applicant appealed to the Board. The Adjudicator interviewed him on 15 May 2017.

18.  The Adjudicator found there was no evidence that the Applicant was at risk from the Bangladesh authorities. There was nothing to show the state supported or acquiesced in Jamal’s conduct against the Applicant. The Adjudicator did not accept Jamal would pose genuine threat to the Applicant. He further considered that if there was really any risk from Jamal, the Applicant could relocate himself away from his home town. The Adjudicator was not convinced Jamal had the resources or intent to pursue the Applicant all over Bangladesh.

19.  In fact, the Adjudicator was most doubtful of the Applicant’s claim for non-refoulement protection. He noted the Applicant arrived in Hong Kong in September 2006 and was arrested in January 2007. Yet, the Applicant only raised his non-refoulement claim in February 2009. The Adjudicator did not accept the Applicant’s explanation of ignorance. He did not accept the Applicant was genuinely in fear of risk.

20.  The Adjudicator was not satisfied the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk.  On 12 April 2018, he refused the Applicant's appeal with respect to all the four applicable grounds.

Grounds of judicial review

21.  In his affirmation, the Applicant complained against the Director and the Adjudicator. As said in paragraph 14 above, I would deal with the current application only in relation to the Board's decision.

22.  The Applicant complained the Adjudicator misdirected himself in law; failed to consider the concept of extended state acquiescence; failed to take into account his psychological strain; rendered unreasonable decision.

Court hearing

23.  The hearing took place on 23 July 2018. The Applicant was in person. A Bengali interpreter provided service in court.

24.  The Applicant confirmed all the grounds of judicial review were in his affirmation. He had nothing to add to those grounds.

25.  The Applicant also confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim.

Discussion

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

27.  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]

28.  The Applicant complained the Adjudicator misdirected himself in law; failed to consider the concept of extended state acquiescence; failed to take into account his psychological strain and rendered unreasonable decision.

29.  The Adjudicator in fact did not believe the Applicant was in genuine need of non-refoulement protection. The Applicant only raised his claim in February 2009 despite he arrived in September 2006 and was arrested almost four months later in January 2007 for overstaying from 30 September 2006. The delay could not be explained by excuses of ignorance or fear. It was reasonable for the Adjudicator to find the Applicant was not in genuine fear of risk. In light of such finding, reasonable state protection (including any form of state acquiescence) and internal relocation were no real issues. Nevertheless, the Adjudicator found there was no evidence of state consent or acquiescence. He also found internal relocation was available to the Applicant in any event. The Adjudicator’s finding was not Wednesbury unreasonable.

30.  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 of the case. 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

31.  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.

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