ISLAM SHAMSUL v. HONG KA-HO ARTHUR, ESQ.

HCAL758/2018

[2019] HKCFI 862

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 758 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 29 (DOB: 25 September 1989). 

2.  The Applicant claimed he would be harmed or killed by the Bangladesh Nationalist Party (“BNP”) because he had killed two BNP members. He also feared the Bangladesh police would arrest, torture and kill him.

3.  The Applicant said he joined the Chatra League (“CL”) in 2000. CL was the student wing of the Awami League (“AL”). He participated in its activities regularly.

4.  On 3 December 2012, there was a fight between AL and BNP. The Applicant was given a pistol by his leader. During the commotion, the Applicant panicked and shot two BNP members. He later heard the two had died. The Applicant thought the BNP people would take revenge.  He dared not go home but stayed in his friend’s place. His father told him on the phone that some unknown people had come to their house to look for him. The Applicant then made arrangement to leave Bangladesh.

5.  On 21 December 2012, the Applicant left Bangladesh for China. He sneaked into Hong Kong from China on 25 December 2012. The next day, he was arrested. The Applicant filed a torture claim on 29 December 2012.

6.  After arriving in Hong Kong, the Applicant learned from his father that the enemies were still looking for him. The Applicant soon lost contact with his father. He later found out his father no longer lived in their home village.

7.  The Applicant said the Bangladesh police were corrupt and could not protect people involved in politicalviolence.

8.  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].

9.  On 2 May 2018, the Applicant applied for leave for judicial review.

Timeline

10.  Things happened in this order: –

2012-12-21	The Applicant left Bangladesh for China.
2012-12-25	The Applicant sneaked into Hong Kong.
2012-12-26	The Applicant was arrested by the police.
2012-12-29	The Applicant filed a torture claim.
2016-6-29	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”]
2016-9-20	The Director invited the Applicant to submit additional facts for the consideration of the fourth applicable ground: BOR2 risk.
2016-10-4	The Applicant failed to submit additional facts by the deadline or thereafter.
2016-10-25	The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [“the Director’s further decision”]
2017-10-20	The Applicant was absent from the Board hearing.
2018-4-6	The Board refused the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”]
2018-5-2	The Applicant applied for leave for judicial review.

Respondent/Interested party

11.  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.

12.  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]

13.  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

14.  In his decision dated 29 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. The Director refused the Applicant’s claim with respect to those three applicable grounds.

15.  On 25 October 2016, the Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk.

The Board's decision

16.  The Board hearing was scheduled for 20 October 2017. The Applicant was absent. 

17.  The Board duly gave notice to the Applicant of the Board’s intention to determine his appeal in his absence unless he could provide a written explanation for his failure to attend the hearing on 20 October 17. There was no response from the Applicant. The Adjudicator thus determined the Applicant's appeal on the available evidence.

18.  The Adjudicator found a number of inconsistencies in the Applicant’s allegations. He found there was no reliable evidence to show the Applicant was a CL member or that he had killed two BNP members. There was no evidence to show the unknown people who allegedly went to the Applicant’s house to look for him were from BNP. The Applicant had not been inflicted with ill-treatment by the BNP people or the Bangladesh police. The Adjudicator was not satisfied that the alleged enemies really wanted to kill the Applicant. Furthermore, several years had passed since the alleged trouble, the Adjudicator considered there was no reason BNP would be all out to look for the Applicant. There was no evidence of state involvement, consent or acquiescence. The complained situation was not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion).

19.  The Adjudicator was cognizant of the relevant country-of-origin information ("COI"). He found the Applicant would not be denied of reasonable state protection or justice in Bangladesh. There was no evidence the Applicant was targeted by the authorities or that the police were after him for the alleged killing of two BNP members.

20.  The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk.  On 6 April 2018, he refused the Applicant's appeal with respect to all the four applicable grounds.

Grounds of judicial review

21.  The Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decision; failed to meet the greater care and duty owed to a self-represented claimant.

22.  The Applicant accused the Adjudicator misdirected himself in law; failed to make sufficient inquiry; failed to consider updated or relevant 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 violation of human rights; failed to call for psychological or psychiatric reports; failed to consider the issues of state protection and state acquiescence; applied the wrong standard of proof.

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

24.  The Applicant further complained he was given the appeal bundle only a few days before the Board hearing. As such, he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation.

25.  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

26.  The hearing took place on 16 August 2018. A Bengali interpreter provided service in court.

27.  In court, the Applicant confirmed all the grounds of judicial review were in the documents.

28.  The Applicant also confirmed he had submitted all the information and materials for his claim.

29.  The Applicant complained there was no hearing by the Adjudicator. He said he had not received the notice for the hearing scheduled for 20 October 2017 or any subsequent letter from the Board asking him to explain for his absence from that hearing. He said he only knew of the Board’s decision on 18 April 2018 when an immigration officer called him to say his case was over.

30.  The Applicant said if he could appear before the Adjudicator on 20 October 2017, he had nothing new to tell the Adjudicator but he could tell the Adjudicator his problem in Bangladesh and his wish to live in Hong Kong. He would ask the Adjudicator to make some arrangement to let him stay here because the situation in Bangladesh was really bad. He did not want to go back.

Discussion

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

32.  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]

33.  It was wrong for the Applicant to say the Director had not screened his non-refoulement claim with respect to BOR2 risk. In his further decision dated 25 October 2016, the Director decided on that remaining applicable ground. The Applicant had not submitted additional facts for the Director's consideration. The Director was not obliged to hold another interview. His further decision must be read in conjunction with his earlier decision dated 29 June 2016, where there was a detailed analysis of the Applicant's case.

34.  The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 29 June 2016.  The Applicant complained there were failures by the assigned duty lawyer. However, he failed to specify what the failures were.

35.  The Applicant complained there were a lack of or insufficient legal representation. 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 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.

36.  The Applicant raised his language problem. In the current application, someone helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find people to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while being represented by the Duty Lawyer Service and in the screening process before the Director. The Applicant had much exaggerated his language problem.

37.  The Applicant complained he received the appeal bundle only a few days before the Board hearing.

38.  According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[9] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[10], 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. There was no evidence the rules had been breached.

39.  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.

40.  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. After all, he was absent from the Board hearing scheduled for 20 October 2017.

41.  The Applicant said he did not get the notice for the hearing scheduled for 20 October 2017 or any subsequent letter from the Board asking him to explain for his absence from that hearing.

42.  The hearing notice and the subsequent intent letter were duly sent to the Applicant's reported address. There was no returned mail. It was unbelievable that the Applicant received the appeal bundle a few days before the Board hearing (as he admitted) and yet he did not get the notice for the hearing.

43.  The Applicant did not appear before the Adjudicator. However, he admitted in court that he had submitted all the information and materials to the Immigration Department. He had nothing new to tell the Adjudicator. He would only tell the Adjudicator his problem in Bangladesh and his wish to live in Hong Kong. He would ask the Adjudicator to allow him to stay here because the situation in Bangladesh was really bad and he did not want to go back.

44.  The Applicant failed to demonstrate he had anything substantive to tell the Adjudicator. He was not prejudiced by his absence from the Board hearing. It did not matter whether his absence was advertent or inadvertent.

45.  The Applicant complained the Adjudicator had not considered the issues of state protection and state acquiescence. The Adjudicator did. He had a balanced study of relevant COI and concluded reasonable state protection was available to the Applicant. He found there was no evidence of state acquiescence.  The Applicant had not reported his alleged enemies to the Bangladesh authorities. There was no evidence the authorities knew of his complained situation. The Adjudicator’s finding was not Wednesbury unreasonable.

46.  The Applicant failed to prove a case that necessitated the Adjudicator to call for psychological or psychiatric reports or to make a finding that there existed in Bangladesh a consistent pattern of gross, flagrant or mass violation 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. 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

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

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

[7] CACV 219/2018 [2018] HKCA 570, para 14(1).

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

[9] 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.

[10] 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 personal 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.