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HCAL1043/2018
[2019] HKCFI 1393
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1043 of 2018
BETWEEN
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Islam Nurul |
Applicant |
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and |
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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 45 (DOB: 7 March 1974).
2. The Applicant claimed he would be harmed or killed by people of the Awami Leagur (“AL”). He was a youth leader of the Jubodal of the Bangladesh Nationalist Party (“BNP”). He had been harassed by his enemies between 2001 and 2006.
3. In mid-2002, the Applicant was with Maija who was a Jubodal president. The two encountered some AL people. They allowed the Applicant to leave but killed Maija.
4. The AL people wanted the Applicant to join them. He refused. The AL people then made Maija’s family believe the Applicant was responsible for the death of Maija.
5. In 2006, the AL people abducted the Applicant and made his family first pay a ransom of 500,000 Taka. They demanded another million Taka to be paid within six months.
6. A report was made to the police but no arrest was made. The abductors pressed the Applicant to pay the remaining ransom. Fearing for his life, the Applicant decided to leave Bangladesh.
7. The Applicant came to Hong Kong as visitor on 29 September 2006. He later went to China and came back on 14 October 2006. He was permitted to stay until 28 October 2006 but he overstayed.
8. In December 2006, the Applicant applied to the UNHCR for asylum.
9. On 6 March 2008, the Applicant was arrested by the police. He raised a torture claim[1] on 23 May 2008.
10. The Applicant said the AL people continued to harass his family. They even abducted one of his brothers. That brother was freed only after some ransom was paid with the remaining to be paid later. The Applicant's three brothers eventually all left Bangladesh in 2011/2012.
11. After that, the AL people demanded money from the Applicant's father. They beat him up. The Applicant’s father died of the injuries in 2013. The AL people occupied the Applicant's family house, forcing his mother to leave. The Applicant's uncle Abu was also beaten up by his enemies.
12. On 5 July 2013, the Director of Immigration (‘the Director”) refused the Applicant's torture claim. [“the Director’s 2013 decision”].
13. On 25 November 2013, the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) refused the Applicant's appeal in relation to his torture claim. [“the Board’s 2013 decision”]
14. Before the Board's 2013 decision came out, the Applicant had raised a non-refoulement claim in July 2013.
15. In the ensuing two-tier screening process, the Director and the Board refused the Applicant’s non-refoulement claim respectively 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].
16. On 8 June 2018, the Applicant applied for leave for judicial review in relation to the Board's 2018 decision.
Timeline
17. Things happened in this order: –
| 2006-10-14 |
The Applicant last entered Hong Kong as visitor. He was permitted to stay until 28 October 2006. |
| 2006-10-29 |
The Applicant began overstaying. |
| Dec 2006 |
The Applicant applied to the UNHCR for asylum. |
| 2008-3-6 |
The Applicant was arrested by the police. |
| 2008-5-26 |
The Applicant raised a torture claim. |
| 2013-7-5 |
The Director refused the Applicant's torture claim. [“the Director’s 2013 decision”] |
| 2013-7-10 |
The Applicant raised a non-refoulement claim. |
| 2013-11-25 |
The Board refused the Applicant's appeal in relation to his torture claim. [“the Board’s 2013 decision”] |
| 2017-6-13 |
The Director refused the Applicant’s non-refoulement claim with respect to these three applicable grounds: persecution risk, BOR2 risk and BOR3 risk. [“the Director’s 2017 decision”] |
| 2018-2-12 |
The Applicant appeared before the Board for appeal. |
| 2018-5-30 |
The Board refused the Applicant's non-refoulement claim with respect to these three applicable grounds: persecution risk, BOR2 risk and BOR3 risk. [“the Board’s 2018 decision”] |
| 2018-6-8 |
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 complaint 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 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
21. In his decision dated 5 July 2013, the Director did not accept the Applicant faced any torture risk.
22. In his decision dated 13 June 2017, the Director did not accept the Applicant faced any persecution risk, BOR2 risk or BOR3 risk. He also found reasonable state protection and internal relocation were available to the Applicant in any event.
The Board’s decision
23. On 25 November 2013, the Board refused the Applicant's appeal in relation to his torture claim. [“the Board’s 2013 decision”; this is not a subject matter of the current application.]
24. In relation to the Director's further decision on persecution risk, BOR2 risk or BOR3 risk [“the Director's 2017 decision”], the Applicant also appealed to the Board. The Adjudicator interviewed him on 12 February 2018.
25. The Adjudicator found many inconsistent and unconvincing features in the Applicant’s claim.
26. The Adjudicator noted that while the Applicant claimed himself to be a president of the Jubodal (the youth wing of BNP), it was recorded in a statement endorsed by him that he was ‘the President of Chhatra Dal’. [Chhatra Dal was the student wing of BNP, different from Jubodal.] Anyway, the Applicant could not tell the Adjudicator much about the ideology of BNP.
27. The Adjudicator did not find the Applicant credible.
28. Even on the Applicant's account of events, the Adjudicator was not satisfied the Applicant had suffered any harm to the minimum level of severity. The Applicant’s complained situation was not on account of any Convention reason (race, religion, nationality, membership of a particular social group or political opinion). The Adjudicator noted that many years had since passed and the AL people were not likely to pursue the Applicant further. The Adjudicator considered reasonable state protection and internal relocation were available to the Applicant in any event.
29. The Adjudicator did not accept the Applicant faced any persecution risk, BOR2 risk or BOR3 risk. She refused the Applicant's non-refoulement claim with respect to those three applicable grounds.
Grounds of judicial review
30. The Applicant complained the Adjudicator unlawfully fettered her 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.
31. The Applicant also 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. The Applicant said he was confused. He complained the Adjudicator failed to make appropriate arrangement.
32. The Applicant further complained the Adjudicator had relied on outdated cases or information not officially recognised or simply hearsay.
Court hearing
33. The hearing took place on 18 September 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. He had nothing to add. The Applicant reiterated that the Adjudicator had not looked into his case properly.
35. 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
36. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
37. 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]
38. The Applicant complained he received the appeal bundle only a few days before the Board hearing.
39. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[8] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[9], 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.
40. The Applicant received the bundle on 5 February 2018. That was 7 calendar days (or 6 working days) prior to the Board hearing scheduled for 12 February 2018. The bundle was served on the Applicant in time.
41. 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.
42. 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.
43. The Applicant mentioned there was a lack of or insufficient legal representation. He had been represented by the Duty Lawyer Service (“DLS”) up to the Director's decision dated 13 June 2017.
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.[10] 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 raised his language problem. In the current application, a friend helped him 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, the Applicant was assisted by interpreters when he was represented by the DLS and in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
46. The Applicant alleged he was confused in the appeal hearing. However, he said he answered all the questions honestly.[11] That means he knew what was asked and how to answer. The Applicant was not confused.
47. There was no evidence the Adjudicator had relied on outdated cases, information not officially recognised or simply hearsay.
48. 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.
Conclusion
49. The Applicant's complaints are not reasonably arguable. He has no realistic prospect of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.
Dated the 31st day of May 2019
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(Henry Ng)
for Registrar, High Court
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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 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 31/5/2019
Islam Nurul
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 31/5/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7557/17/6/253/B876
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1079/17 (formerly RBCZ 2001567/14)
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] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570, para 14(1).
[8] 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.
[9] 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.
[10] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[11] The Applicant's affirmation, Point 8 on page 4.
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