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HCAL 918/2018
[2019] HKCFI 2024
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 918 of 2018
BETWEEN
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Jewel |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
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: 10 November 1980).
2. The Applicant claimed he would be harmed or killed by a man called Raju, who demanded money from him and wanted to take revenge on him. The Applicant also feared the Bangladesh authorities. He said he would face death penalty because he was regarded as a criminal defendant and fugitive in connection with a murder charge arising from a fatal traffic accident in his country.
3. The Applicant said he hired a public bus from Raju in 2004. Raju was the Chairman of the Municipality Corporation of Gopalgonj, which was a branch of the local government in charge of public utilities, roads and transportation. Raju was also a member of the political party, the Awami League, which ruled the country.
4. The Applicant employed a driver called Zahir to drive the bus. On 10 October 2005, Zahir drove the bus and collided with a truck resulting in the deaths of three passengers and a pedestrian called Maruf. The Applicant at that time was working as the bus conductor. He fled the scene of accident in fear because drivers and conductors were often attacked by crowds after accidents.
5. Maruf’s father lodged a murder complaint against the Applicant and the bus owner Raju. The two became criminal defendants.
6. The bus was badly damaged. Raju demanded compensation from the Applicant. He repeatedly harassed the Applicant's mother and threatened he would cause trouble if his demand was not met. The Applicant was told by his mother that he should stay away from home. She later advised the Applicant to leave Bangladesh.
7. The Applicant thought the police would take side with Raju because the latter was a public official. He said Raju was powerful and could find him anywhere in Bangladesh.
8. The Applicant left Bangladesh for China on 15 December 2005. He entered Hong Kong as visitor on 19 December 2005. He was allowed to stay for 14 days but he overstayed.
9. The Applicant was arrested by the police in Hong Kong on 25 June 2006. His friend produced a Bangladesh report in the name of Rohim Abdul to the police. The Applicant relied on that passport. On 20 July 2006, he used that name to raise a torture claim[1]. The Applicant was actually called Jewel. His false identity of Rohim Abdul was later exposed. He was convicted on 7 September 2006 of attempt to mislead a police officer.
10. On 3 October 2006, the Applicant changed to raise his torture claim by the name Jewel. The claim was rejected by the Director of Immigration (“the Director”) on 22 August 2012.
11. On 15 October 2012, the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) rejected the Applicant’s appeal against the Director's decision on torture claim.
12. The Applicant later failed to report to the Director on 7 December 2012.
13. On 1 July 2013, the Applicant raised a non-refoulement claim by way of a written representation. He surrendered to the Immigration Department on 18 November 2013.
14. The Applicant said after he had come to Hong Kong, he learnt Raju was arrested by the Bangladesh police in December 2005 for Maruf’s death in the said traffic accident. Raju was released after having been detained for months.
15. Raju remained to be the Chairman of the Municipality Corporation of Gopalgonj. He continued to harass the Applicant's mother and threatened to kill the Applicant and his family.
16. The Applicant learnt his mother and brother had to flee to Italy in 2014 to avoid Raju.
17. In the ensuing two‑tier screening process here, the Director and the Board respectively rejected the Applicant’s 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].
18. On 24 May 2018, 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 Board as respondent and the Director as interested party. The Board is the putative respondent; the Director is the putative interested party.
The Director's decision
22. In his decision dated 22 August 2012, the Director rejected the Applicant's torture claim. [“the Director's 2012 decision”]
23. In his decision dated 22 August 2016, the Director did not accept the Applicant faced any persecution 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 non-refoulement claim with respect to those two applicable grounds. [“the Director's 2016 decision”]
24. On 18 July 2017, the Director rejected the Applicant’s non-refoulement claim with respect to the last applicable ground: BOR2 risk. [“the Director's 2017 decision”]
The Board's decision
25. On 15 October 2012, the Board rejected the Applicant’s appeal against the Director's 2012 decision on torture claim. [The Board's 2012 decision was not a subject matter of the current application for leave for judicial review.]
26. The Applicant appealed against the Director's 2016 and 2017 decisions to the Board. The Adjudicator interviewed him on 12 January 2018.
27. The Applicant had produced certain documents in the screening process. They were related to the said traffic accident, the compensation claim brought by Raju and the murder complaint laid by Maruf’s father. The Adjudicator found many irregularities in the documents. However, he was prepared to accept the Applicant was involved in a bus accident in 2005 and then absconded. He was pursued by the police and Raju. Yet, the Applicant told the Adjudicator that he was “not scared of the consequences of the court case. I will accept it. I am only scared of Raju…”[6] The Adjudicator considered the Applicant absconded from Bangladesh for fear of Raju rather than for fear of the Bangladesh authorities.
28. The Adjudicator considered that if the charges against the Applicant were real, the Applicant could give evidence of what actually happened in due process before a competent court in Bangladesh. Raju would not harm or kill the Applicant because he actually needed the Applicant to testify in his interest. The Adjudicator noted Raju had never laid a finger on the Applicant or his family. If the Applicant surrendered to the Bangladesh police, he would be remanded and therefore safe from Raju. If the Applicant chose not to submit to the authorities, then he could relocate to other parts of the country. The Adjudicator was not satisfied Raju could track down the Applicant then.
29. The Adjudicator noted Bangladesh had ratified the International Covenant on Civil and Political Rights. Though death penalty would be imposed for murder offences, Bangladesh seldom carried out the death sentences. The Adjudicator considered there was no evidence against the Applicant on the said murder charge. There was no BOR2 risk. The Adjudicator also found the Applicant failed to establish any BOR3 risk. The complained situation was also not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion) so there was no persecution risk too.
30. On 7 May 2018, the Adjudicator rejected the Applicant’s claim with respect to these three applicable grounds: persecution risk, BOR2 risk and BOR3 risk.
Grounds of judicial review
31. The Applicant complained the Adjudicator unlawfully fettered his 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.
32. The Applicant said he was given the appeal bundle only a few days before the Board hearing. As such, he could not sufficiently prepare for the appeal due to language problem and lack of legal representation. The Applicant said he was confused of what happened. He complained the Adjudicator failed to make appropriate arrangement.
33. The Applicant complained the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay.
Court hearing
34. The hearing took place on 29 August 2018. The Applicant was in person. A Bengali interpreter provided service in court.
35. The Applicant said he paid a lawyer to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. He had nothing to add.
36. 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
37. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
38. 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’.[7] 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.” [8]
39. The Applicant mentioned he was not legally represented for appeal to the Board. He had been represented by the Duty Lawyer Service (“DLS”) up to July 2016, when the DLS informed the Director on 12 July 2016 that they had not been able to reach the Applicant and therefore had to cease acting for him.[9] There was no explanation from the Applicant so he could not complain he was not further represented by the DLS.
40. The Applicant complained there was a lack of language assistance.
41. It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.[10]
42. In the current application, the Applicant paid a lawyer 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, he was assisted by qualified interpreters in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
43. The Applicant complained he received the appeal bundle only a few days before the Board hearing.
44. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[11] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[12], 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.
45. The Applicant said he received the bundle on 5 January 2018. It was 7 calendar days (or 6 working days) before the Board hearing scheduled for 12 January 2018. The bundle was served on the Applicant in time.
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 Applicant said he answered all the questions honestly in the Board hearing.[13] That means he knew what was asked and how to answer. He was not confused.
49. There was no evidence the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay.
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 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 therefore refuse to grant him leave to apply for judicial review.
Dated the 15th day of August 2019
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(Henry Ng)
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 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 15/8/2019
Jewel
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 15/8/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4652/16/9/31/B623
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 430/15 & RBCZ 9002619/17 (formerly RBCZ 2000784/14)
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] The Board's decision, para 108.
[7] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, par[7] The Director's decision dated 22 August 2016, para 8. as 44-45.
[8] CACV 219/2018 [2018] HKCA 570, para 14(1).
[9] The Director's decision dated 22 August 2016, para 8.
[10] See Re Zaman Muhammad [2018] HKCA 486 at [13]; Re Gurnishan Singh [2018] HKCA 704 at [13].
[11] 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.
[12] 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 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.
[13] The Applicant's affirmation, Point 8 on page 3.
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