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HCAL912/2018
[2019] HKCFI 1414
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 912 of 2018
BETWEEN
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Tarek Mahamud |
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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and |
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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 35 (DOB: 11 December 1983).
2. The Applicant claimed he would be harmed or killed by people of the Awami League (“AL”).
3. The Applicant said he joined the Bangladesh Jatiotabadi Chatra Dal (“JCD”) in 2003. It was the student wing of the Bangladesh Nationalist Party (“BNP”). He later became the General Secretary of JCD in his college.
4. The Applicant graduated in 2005. He continued to support BNP by joining Jatiobadi Jubo Dal (“JD”) in 2006, which was the youth wing of BNP. He participated in the party’s activities. BNP was the ruling party in Bangladesh until late 2006 when BNP handed over power to an interim government.
5. Clashes between the BNP and AL followed. The AL people often disrupted BNP’s activities. There were fights between both sides. The Applicant was involved. He was slightly injured.
6. In mid-2008, the Applicant became the General Secretary of the local branch of JD. He had to motivate people to vote in the coming election. Some AL members threatened to kill him. They included Kamal and Samad, who threatened to kill the Applicant if he remained in Bangladesh. [Kamal and Samad were the President and Secretary of the Jubo League (“JL”), which was the youth wing of AL.]
7. AL won the election and came to power in early 2009.
8. In January 2009, six to seven JL members went to the Applicant’s home to look for him. They asked the Applicant why he had not left Bangladesh. They assaulted him. The Applicant's father called the police.
9. The Applicant was injured. He sought help from his own party. His leaders just comforted him but AL continued to threaten him between 2009 and 2013. The Applicant said his activity in JD made him a target of his enemies.
10. In April 2013, the Applicant made a speech in a public meeting of JD to demand the AL government to hold an election. In May 2013, ten odd armed AL members confronted him. The Applicant managed to escape. He fled to Dhaka.
11. The Applicant learnt his enemies continuously looked for him and harassed his family. The Applicant worried about his safety. He left Bangladesh for China on 21 June 2014. Two days later, he sneaked into Hong Kong and was arrested by the police. The Applicant raised a non-refoulement claim subsequently.
12. The Applicant did not think the Bangladesh police would protect him because they sided with AL. The Applicant even feared the police might hand him over to his enemies.
13. The Applicant also thought his enemies could easily locate him in the country because they had extensive networks. Internal relocation was not viable.
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 24 May 2018, the Applicant applied for leave for judicial review.
Timeline
16. Things happened in this order: –
| 2014-6-21 |
The Applicant left Bangladesh for China. |
| 2014-6-23 |
The Applicant was arrested by the police for illegal remaining. He claimed he entered Hong Kong that day. |
| 2014-6-27 |
The Applicant raised a non-refoulement claim. |
| 2017-1-9 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR2 risk. [‘the Director's decision”] |
| 2017-12-6 |
The Applicant appeared before the Board. |
| 2018-5-18 |
The Board refused the Applicant's appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-5-24 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
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 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]
19. 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
20. In his decision dated 9 January 2017, the Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 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 all the four applicable grounds.
The Board's decision
21. The Applicant appealed to the Board. The Adjudicator interviewed him on 6 December 2017.
22. The Adjudicator found the Applicant's allegations unconvincing. The Applicant claimed to have participated actively in JCD and JD of BNP. However, he could not articulate the political objectives of BNP. His claim of working as JCD’s General Secretary in his college was vague. He made no mention of JCD’s activities and policies. He was inconsistent on the number of JCD members in his college.
23. Regarding his claim of participation in JD, the Adjudicator also found it vague and unconvincing. The Adjudicator placed little weight on the document, which the Applicant submitted to prove his relation with JD. It was merely a photocopy and there was no date on the document; the logo was illegible.
24. In describing the enemies’ attack which allegedly took place in January 2009, the Applicant was inconsistent. He told the Director that he recognized Kamal and Samad were there but he informed the Adjudicator otherwise. The Applicant was also inconsistent on whether he was harassed and threatened persistently by his enemies between 2009 and 2013.
25. The Adjudicator was only prepared to accept the Applicant was an ordinary member of JCD involving in low-level activies. The Adjudicator considered it was incredible that the alleged enemies would still look for the Applicant after he had left Bangladesh for several years. The Adjudicator found the Applicant embellished his claim including the bare assertion that his brother was recently killed by the alleged enemies. The Adjudicator did not find the Applicant a truthful witness. She did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk.
26. On 18 May 2018, the Adjudicator refused the Applicant's appeal with respect to all the four applicable grounds.
Grounds of judicial review
27. 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.
28. The Applicant 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 of what happened. He complained the Adjudicator failed to make appropriate arrangement.
29. The Applicant also complained the Adjudicator relied on outdated cases, information not officially recognised or simply hearsay.
Court hearing
30. The hearing took place on 27 August 2018. The Applicant was in person. A Bengali interpreter provided service in court.
31. The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents.
32. The Applicant confirmed he had submitted all to the Director and the Adjudicator for their consideration of his non-refoulement claim. He complained the Director and the Adjudicator had not looked at his case properly.
Discussion
33. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
34. 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]
35. The Applicant mentioned he was not legally represented for the appeal. He had been represented by the Duty Lawyer Service up to the Director's decision dated 9 January 2017.
36. 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.
37. 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, he was assisted by qualified interpreters while he was still represented by the Duty Lawyer Service and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
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’[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.
40. The Applicant said the Director served the appeal bundle on him on 29 November 2017 before the Board hearing scheduled for 6 December 2017. That was 7 calendar days (or 6 working days) prior to the Board hearing. 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 said he answered all the questions honestly in the Board hearing.[11] That would mean he knew well what was asked and how to answer. He was not confused.
44. There was no evidence the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay.
45. 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
46. 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 the 18th day of June 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
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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 18/6/2019
Tarek Mahamud
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 18/6/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 5887/17/1/171/B725
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 527/16 (formerly RBCZ 2333/14)
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] 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 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.
[11] The Applicant's affirmation, Point 8 on page 3.
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