DHALI JONY v. IAN CANDY, ESQ.

HCAL342/2018

[2019] HKCFI 371

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 342 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 27 (DOB: 11 January 1992).

2.  The Applicant claimed he would be harmed or killed by the family of his neighbour because he had injured one of their family members.

3.  The Applicant said his neighbour’s family supported the Awami League (“AL”). The members of that family seemed to hold high-rank positions in the party because a member of the Parliament visited them regularly.

4.  The Applicant's father supported Jamaat-e-Islami (“JeI”).

5.  The two families often had argument due to their political difference. In February 2012, a member of the neighbour’s family called Latif quarrelled with the Applicant's father. The Applicant was angry. He hit Latif’s head with a wooden plank. Latif bled severely. He was admitted to the hospital in critical condition.

6.  The Applicant's family sent the Applicant away. Later, they also moved away because they knew their neighbours would seek revenge.

7.  The Applicant and his family first went to Dhaka. Their enemies followed them so they moved further to Gazipur. The Applicant and his father, however, later returned to Dhaka.

8.  In Dhaka, the Applicant was confronted by 7 to 8 people sent by Latif’s family. He managed to escape.

9.  Ten odd days later, a group of people including Latif’s son Mohsin tried to apprehend the Applicant but failed.

10.  A month later, some people including Mohsin went to the Applicant’s home. The Applicant and his father were not there. Those people vandalized the furniture in the house and took away some valuable properties.

11.  The Applicant and his father decided to moved back to Gazipur. Six months later, some armed people came. They tried to abduct the Applicant but failed as there were people around.

12.  The Applicant decided to leave Bangladesh. On 27 December 2012, he arrived in China. Months later, he saw Latif’s sons in Shenzhen. He felt danger and decided to go to Hong Kong to seek protection. The Applicant sneaked into Hong Kong on 22 June 2013. He was arrested by the police on the next day.

13.  The Applicant said his enemies were powerful because they belonged to the ruling party. He said they could track him down anywhere in Bangladesh so internal relocation was not feasible.

14.  The Applicant did not think the Bangladesh authorities would protect him since his enemies belonged to AL. He said the police were corrupt and there was abuse of human rights in the country.

15.  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].

16.  On 5 March 2018, the Applicant applied for leave for judicial review.

Timeline

17.  Things happened in this order: –

2012-12-27	The Applicant arrived in China from Bangladesh.
2013-6-22	The Applicant sneaked into Hong Kong from   China.
2013-6-23	The Applicant was arrested by the police for illegal remaining.
2013-6-26	The Applicant raised a torture claim.
2015-11-10	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”]
2017-5-25	The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk.
2017-6-8	The Applicant failed to submit any additional facts by the deadline or thereafter.
2017-6-12	The Director refused the Applicant's claim with respect to the fourth applicable ground: BOR2 risk. [“the Director's further decision”]
2017-12-14	The Applicant was absent from the Board hearing.
2018-2-7	The Board refused the Applicant's claim with respect to all the four applicable grounds. [“the Board’s decision”]
2018-3-5	The Applicant applied for leave for judicial review.

Respondent/Interested party

18.  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.

19.  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]

20.  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. The Adjudicator is the putative respondent; the Director is the putative interested party.

The Director's decision

21.  On 10 November 2015, 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 non-refoulement claim with respect to those three applicable grounds.

22.  On 12 June 2017, the Director did not accept the Applicant faced any BOR2 risk. He refused the Applicant’s non-refoulement claim with respect to that last applicable ground.

The Board's decision

23.  The Applicant appealed to the Board. The hearing was scheduled for 14 December 2017. The Applicant was absent.

24.  The Adjudicator was satisfied that the notice of hearing had been sent to the Applicant's last reported address on 9 October 2017.[6]  [The Director confirmed in his letter dated 8 August 2018 that the Applicant's reported address between 19 October 2016 and 8 March 2018 was “G/F, 206 Yuen Kong Tsuen, Kam Sheung Road, Pat Heung, Kam Tin, N.T.” ]

25.  TCAB staff attempted to reach the Applicant by phone on the date of the appeal hearing but to no avail.[7]

26.  TCAB further notified the Applicant by mail of the situation but heard nothing from him. The Adjudicator then determined the Applicant's appeal on the available information.[8]

27.  The Adjudicator found there was much hearsay in the Applicant's claim. He did not attach weight to such allegation as it was not supported by oral evidence from the Applicant or any credible proof. The Adjudicator found the Applicant failed to establish any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 7 February 2018, he refused the Applicant's appeal with respect to all the four applicable grounds.

Grounds of judicial review

28.  In Form 86 and his affirmation, 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.

29.  The Applicant accused the Adjudicator misdirected himself in law; 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.

30.  The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of and/or insufficient legal representation.

31.  The Applicant complained there was no hearing held by the Adjudicator.

32.  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

33.  The hearing took place on 30 July 2018. The Applicant was in person. A Bengali interpreter provided service in court.

34.  The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents.

35.  The Applicant explained why he was absent from the Board hearing on 14 December 2017. He said he had been living at ‘DD 111 Lot Toi Shan Tsun, Lot 28 Wing Ning Lane, No. 196 Wang Toi Shan, Yuen Long’ [“the 196 Address”]’ since 2015. He said that was the address he had provided to the Immigration Department. He did not know the address stated on the Director's further decision dated 12 June 2017: ‘G/F 206 Yuen Kong Tsuen, Kam Sheung Road, Pat Heung’ [“the 206 Address”]’.  The Applicant claimed he had never provided the 206 Address to the Immigration Department. He said he had never received the Director's further decision or the Board’s notice of hearing and decision. He only knew the result of his claim when the Immigration Department told him his case was over.

36.  The Applicant complained he was not given more time by the Director to gather proofs. He said if he could appear before the Adjudicator, he would try to produce more proofs. He said those proofs were still in Bangladesh. He did not have them in Hong Kong.

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’.[9] 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.” [10]

39.  It was wrong for the Applicant to say the Director had not screened his non-refoulement claim with respect to BOR2 risk. The Director had screened the Applicant's claim with respect to BOR2 risk in his further decision dated 12 June 2017. The Applicant provided no additional facts to the Director. The Director was entitled to screen the Applicant's claim with respect to BOR2 risk without holding further hearing after having given him sufficient time to provide additional facts. The Applicant failed to do so. His saying that he had more proofs for his claim was only vague talk. He could not explain why he still did not have them even now.

40.  The Applicant complained there was no hearing held by the Adjudicator. There was an appeal hearing scheduled for 14 December 2017 but the Applicant was absent. He alleged he did not receive the notice of hearing.

41.  The Applicant claimed he had been living at “the 196 Address” since 2015. The Director, however, confirmed in his letter dated 8 August 2018 that the Applicant's reported address between 19 October 2016 and 8 March 2018 was “the 206 Address”. In January 2014 and March 2018, the Applicant reported two other different addresses in Yuen Long but he had never provided “the 196 Address”.

42.  The Applicant was duly notified of the scheduled Board hearing. There was no returned mail. I do not accept the Applicant had not received the notice of hearing. The Applicant was absent from the Board hearing for no good reason.

43.  The Applicant said he was not legally represented for appeal to the Board. He had been represented by the Duty Lawyer Service up to the Director's decision dated 10 November 2015.

44.  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.[11] 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.

45.  The Applicant complained there were failures by the assigned duty lawyer. However, he failed to specify what the failures were.

46.  The Adjudicator had not considered the issues of state protection and state acquiescence. He did not have to as he found the Applicant failed to establish any torture risk, persecution risk, BOR2 risk or BOR3 risk. For the same reason, there was no need to call 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.

47.  There was no evidence the Adjudicator cherry-picked information or took into account outdated cases, irrelevant information, information not officially recognised or simply hearsay.

48.  There was also no evidence the Adjudicator misdirected himself in law or applied the wrong standard of proof.

49.  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 Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. He chose to be absent from the Board hearing. Nevertheless, the Adjudicator considered the Applicant’s claim carefully. He was acquainted with the facts and applied the law correctly. He 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

50.  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