HOSSAIN MD MOKTAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL165/2018

[2018] HKCFI 1563

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 165 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 41 (DOB: 1 October 1976). 

2.  The Applicant claimed he would be harmed or killed by people of the Awami League (“AL”).

3.  The Applicant said he had joined the Bangladesh Nationalist Party (“BNP”) since 1996. He put up banners/posters, arranged meetings, brought people to meetings and persuaded people to vote for BNP. He was able to mobilise others.

4.  The Applicant said there were constant conflicts between BNP and AL. The police would help AL to arrest BNP members. The Applicant always managed to escape.

5.  In 2013, some AL people planted weapons at the Applicant’s home. The police came for a search. They founded the weapons. The Applicant was arrested and accused to be a terrorist. He was quickly convicted by the court and sentenced to 3 months’ imprisonment.

6.  In January 2015, the Applicant was having a meeting with some BNP members. At least 200 AL people came to attack them. The Applicant was injured but he managed to escape.

7.  After staying in another place for some days, the Applicant went back to his village. He did not report the matter to the police because the police favoured AL (the ruling party).

8.  Two months later, the Applicant was again having a meeting with some BNP members at his home. Around 30 - 40 AL people came to attack them. They were armed. They said they would kill the BNP people if they should meet again. Although the Applicant was injured badly in his right leg, he managed to escape and stayed in another place for a month. He again did not report the matter to the police.

9.  A few days later, 30 odd AL armed people came to the Applicant’s home again. They broke into the house and vandalised everything inside. The Applicant was not there. Those people assaulted the Applicant's mother. They threatened to kill the Applicant within a week. The Applicant was informed of the incident by his wife. No report was made to the police.

10.  The Applicant thought it would not be safe for him to stay in Bangladesh. On 29 April 2015, he left Bangladesh for Myanmar and stayed there till 6 May 2015. There was no asylum protection mechanism there. The applicant returned to Bangladesh. He did not go back to his village but stayed in Dhaka.

11.  On 27 June 2015, the Applicant left Bangladesh for China by air. He entered Hong Kong illegally on 16 July 2015 and sought non-refoulement protection subsequently.

12.  The Applicant learned from his family in Bangladesh that the AL people still came to look for him from time to time. He believed the AL people would kill him unless he joined them. The Applicant did not think the Bangladesh police would protect him. He also thought internal relocation was not viable because of the strong influence of AL.

13.  In the ensuing two‑tier screening process here (“the Unified Screening Mechanism”), 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].

14.  On 5 February 2018, the Applicant applied for leave for judicial review.

Chronology of events

15.  Things happened in this order: –

2015-6-27	The Applicant left Bangladesh for China by air.
2015-7-16	The Applicant entered Hong Kong illegally from China by boat. He surrendered to the Immigration Department on the next day.
2015-12-17	The Applicant lodged a non-refoulement claim.
2017-6-13	The Director held a screening interview with the Applicant.
2017-6-23	The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (BOR3 risk) and (iv) life risk (BOR2) risk. [“the Director's decision”]
2017-10-17	The Applicant appeared before the Board for appeal.
2018-1-31	The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board's decision”]
2018-2-5	The Applicant applied for leave for judicial review.

Respondents

16.  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 complaint on a rehearing basis.

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

18.  An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.[5]

19.  In the present case, the Director's decision was more than three months old by the time the Applicant filed his current application on 5 February 2018. However, the Applicant should not seek judicial review against the Director's decision before the Board rendered its appeal decision on 31 January 2018. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the Director's decision albeit late on 5 February 2018; the application against the Board's decision was made in time.

Director of Immigration (the Director)

20.  In the Director’s decision dated 23 June 2017, the immigration officer did not make specific findings on the Applicant’s credibility. However, even on the strength of the Applicant’s allegations the officer considered the Applicant had not been inflicted with ill-treatment to a minimum level of severity. The Applicant was not a target of the Bangladesh authorities. There was no real and imminent risk of his being harmed or killed by the alleged enemies.

21.  The officer was aware there were reports of human rights violation and police corruption in Bangladesh. However, there was objective country-of-origin information (“COI”) showing ongoing reforms in the country. The Bangladesh government had taken practical steps to monitor the conduct of the police and to improve their effectiveness. The officer did not accept reasonable state protection was not available to the Applicant. He was satisfied internal relocation was also viable.

22.  The officer did not accept the Applicant faced any 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) and life risk (BOR2 risk).

TCAB/NCPO (the Board)

23.  The Adjudicator found a number of inconsistent and implausible features in the Applicant’s allegations. She concluded the Applicant was not a truthful witness and had fabricated his claim.

24.  The Adjudicator did not accept the Applicant faced any real risk that warranted non-refoulement protection.

25.  Since the Applicant faced no real risk, the Adjudicator did not think it was necessary for her to go on to discuss state protection or internal relocation.

26.  The Adjudicator 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).

Grounds for judicial review

27.  In his affirmation, the Applicant complained: –

(a)  no hearing by the Board;

(b)  lack of legal representation;

(c)  lack of language assistance;

(d)  the Director failed to explain how he considered COI for and against him.

No request of hearing

28.  Order 53, rule 3 of the Rules of the High Court provides: –

The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application, and need not sit in open court; and in any case the Registrar shall serve a copy of the judge’s order on the Applicant.

29.  In Form 86, the Applicant has not requested a hearing.  Nor has he stated such a wish in his affirmation.  There is nothing ambiguous in his application that calls for a hearing.  As such, I proceed to deal with his application for leave for judicial review on consideration of documents only.

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’.[6]

No hearing by the Board

32.  The Applicant complained the Board issued its decision without a hearing. That is not true. The Adjudicator held a hearing on 17 October 2017. The Applicant was present. He gave evidence in the hearing.[7]

Lack of legal representation

33.  The Applicant complained he was not provided with legal assistance for his appeal to the Board. He had been represented by the Duty Lawyer Service up to the Director's decision coming out on 23 June 2017.

34.  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 cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

Lack of language assistance

35.  The Applicant complained he was not provided with sufficient interpretation/translation assistance.

36.  In the current application for leave for judicial review, Form 86 and the Applicant’s affirmation were presented in English. If those were not prepared by the Applicant himself, then they showed at least the Applicant could find someone to provide him with assistance in interpretation/translation and handling 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.

The Director failed to explain how he considered COI

37.  The immigration officer acting on behalf of the Director clearly stated the COI he had considered. He had a balanced study of COI for and against the Applicant. His findings and conclusions on the issues of state protection and internal relocation were not Wednesbury unreasonable. The officer need not state the mental process of his consideration.

38.  I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. In my judgement, the Director and the Adjudicator had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Director or the Adjudicator, who had each engaged in joint endeavour with the Applicant in the inquiry process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The reports of the Director and the Adjudicator showed they were acquainted with the facts and they applied the law correctly. They considered the Applicant's claim carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

39.  The Applicant's complaints are not reasonably arguable either against the Director or the Board. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the 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] Order 53, rule 4 of the Rules of the High Court.

[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.

[7] The Adjudicator’s Report, paras 38-47.

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