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HCAL1127/2017
[2019] HKCFI 377
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1127 of 2017
BETWEEN
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Mahiuddin Mohammad |
Applicant |
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and |
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Director of Immigration |
1st Putative Respondent |
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Dak Wai Lo, Esq. |
2nd Putative Respondent |
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 33 (8 October 1985).
2. The Applicant claimed he would be harmed or killed by members of the Awami League (“AL”).
3. The Applicant said he was a member of a political party called the Bangladesh Jatiojabadi Jubodal (“JD”), which was the youth wing of the Bangladesh National Party (“BNP”).
4. In 2011, there was a union council election. The Applicant's uncle Shahjahan was the BNP candidate while Rafiq represented AL. The Applicant was targeted by the AL people because of his relation with his uncle.
5. After the election, in December 2011 Rafiq and some AL people attacked the Applicant and his family members including Shahjahan. They set fire to their houses. Police came but did nothing to stop those men. In fact, the police beat up and drove away the people who came to help the Applicant and his family. Finally, the Applicant’s father-in-law managed to bring some people to the scene. The AL people were forced to stop. Before they left, they threatened to kill the Applicant if he stayed in the village.
6. The Applicant did not make any complaint to the police or other authorities because he thought they would only listen to the AL people.
7. After the Applicant was discharged from the hospital, he moved to live with his in-laws. Later, he moved further to a place called Chittagong.
8. In late 2013, the Applicant was questioned by a stranger. He suspected the stranger was sent by AL. The Applicant then fled to Dhaka to stay with a family friend.
9. In early 2014, the Applicant returned to Bamui to visit his sick wife. Since then, he stayed alternately in Bamui and Dhaka to avoid his enemies.
10. In January 2014, AL won the general election. The Applicant lost hope. He felt it would not be safe for him to remain in Bangladesh.
11. In July 2014, the Applicant left Bangladesh for China. He later sneaked into Hong Kong and claimed non-refoulement protection.
12. The Applicant said the Bangladesh authorities and police would not protect him because his enemies were from the ruling party AL.
13. The Applicant also thought internal relocation was not feasible since his enemies could locate him anywhere in Bangladesh.
14. 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].
15. On 21 December 2017, the Applicant applied for leave for judicial review.
Timeline
16. Things happened in this order: –
| July 2014 |
The Applicant left Bangladesh for China. He later sneaked into Hong Kong. |
| 2014-7-15 |
The Applicant was arrested by the police in Hong Kong for illegal remaining. |
| 2014-7-19 |
The Applicant raised a non-refoulement claim. |
| 2016-6-17 |
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”] |
| 2017-6-26 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-7-10 |
The Applicant failed to submit any additional facts by the deadline or thereafter. |
| 2017-7-27 |
The Director refused the Applicant's claim with respect to the fourth applicable ground: BOR2 risk. [“the Director's further decision”] |
| 2017-10-4 |
The Applicant appeared before the Board for appeal. |
| 2017-11-10 |
The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board's decision”] |
| 2017-12-21 |
The Applicant applied for leave for judicial review. |
Respondents
17. 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.
18. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Director and the Adjudicator as respondents. The Director is the first putative respondent; the Adjudicator is the second putative respondent.
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] The Applicant cannot seek leave for judicial review against the Director's decisions. Therefore, I shall deal with his application in relation to the Board's decision only.
The Director's decision
20. In his decision dated 17 June 2016, 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.
21. In his further decision dated 27 July 2017, the Director refused the Applicant’s claim with respect to BOR2 risk.
The Board's decision
22. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 4 October 2017.
23. The Adjudicator was prepared to accept the Applicant was affiliated with BNP and there were conflicts between BNP and AL. However, she found there were a number of unsatisfactory features in the Applicant's claim. For example, the Applicant produced a newspaper article relating to the alleged 2011 attack. The name of the injured person was ‘Mihuiddin’ rather than ‘Mahuiddin’. Furthermore, the age of the injured and the name of the hospital were different from what the Applicant stated.[6] The Adjudicator also found there was no reasonable explanation why the Applicant would not report the matter to the Bangladesh police.[7] There was no evidence the Applicant had really been injured and hospitalised as he claimed.[8] The Adjudicator found the Applicant made up allegations to embellish his claim. The Applicant failed to prove any torture risk, persecution risk, BOR2 risk and BOR3 risk. The Adjudicator also found the Applicant failed to prove state protection was not available. She further found internal relocation was viable in the Applicant’s case in any event.
24. On 10 November 2017, the Adjudicator refused the Applicant's appeal with respect to all the four applicable grounds.
Grounds of judicial review
25. In Enclosure 2 of Form 86, the Applicant complained against the Director and the Adjudicator. As said in paragraph 19 above, I shall deal with the current application in relation to the Board's decision only because the Director's decisions had gone on appeal to the Board for rehearing.
26. The Applicant complained the Adjudicator failed to make sufficient inquiry; failed to assess his claim properly and failed to have regard that he had no or limited options at his disposal to adduce evidence since he was in custody at the immigration detention centre. He also accused the Adjudicator failed to give him sufficient chance to arrange relevant evidence.
Court hearing
27. The hearing took place on 30 July 2018. The Applicant was in person. A Bengali interpreter provided service in court.
28. The Applicant said a lawyer helped him to prepare Form 86 and the affirmation for judicial review. All the grounds of judicial review were in the documents. He had nothing to add to those grounds.
29. The Applicant also confirmed he had submitted all he had 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’.[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]
32. The Applicant complained the Adjudicator failed to make sufficient inquiry and failed to assess his claim properly.
33. As evident in the Adjudicator’s report, the Adjudicator studied the Applicant's case thoroughly and made comprehensive inquiry. Her various findings are not Wednesbury unreasonable.
34. The Applicant said the Adjudicator failed to have regard that he had no or limited options at his disposal to adduce evidence since he was in custody at the immigration detention centre. However, there was no evidence the Applicant was remanded again by the Immigration Department after he was released on recognizance on 29 August 2014.[11] There was no evidence the Applicant was deprived of any opportunity to prove his claim as much as he could.
35. The Applicant also accused the Adjudicator failed to give him sufficient chance to arrange relevant evidence. In this regard, the Applicant failed to give particulars. There was no evidence he had asked adjournment for cause in the Board hearing.
36. In court, the Applicant said he could submit fresh evidence if given more time. He was talking about an alleged fabrication against him in Bangladesh that came up only about a month before the court hearing. It certainly had nothing to do with the appeal hearing before the Adjudicator in October 2017.
37. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She 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. She 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
38. 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.
Dated 21st day of February 2019
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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
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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 21/2/2019
Mahiuddin Mohammad
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 21/2/2019
Director of Immigration
1st Putative Respondent’s ref. no.:
QA T/C 32/16 & RBCZ 9002505/17 (formerly RBCZ 2494/14)
Dak Wai Lo, Esq.
2nd Putative Respondent’s ref. no.:
USM 3993/16/6/183/B547
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. 35(e).
[7] Ibid, para 35(g).
[8] Ibid, para 35(h).
[9] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[10] CACV 219/2018 [2018] HKCA 570, para 14(1).
[11] The Director's decision, para 7.
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