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HCAL471/2018
[2018] HKCFI 2772
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 471 of 2018
BETWEEN
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Asha Dullah |
Applicant |
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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 27 (DOB: 15 June 1991).
2. The Applicant claimed he would be harmed or killed by the Awami League (“AL”).
3. The Applicant said he was admitted to college in 2008. He soon joined the Islamic Chhatra Shibir (“ICS”), which was the student wing of Jamaat-e-Islami (“JEI”). He was assigned to recruit members, organise gatherings, hold meetings and deliver speeches. In 2009, the Applicant was appointed as the president of ICS in his college.
4. In mid-2009, the AL president in the college Rakibul approached the Applicant with some AL members. They asked the Applicant to leave the college immediately. The Applicant quarrelled with them. A professor came to intervene. When the Applicant left the college later that day, he and his companions was assaulted by some armed AL people. The Applicant was injured. The incident came to an end when a union council chairman stopped the fight.
5. Being in fear of his enemies, the Applicant stopped going to school for several months. When he returned to college, his mother called him to say 10 people had come to their house to demand the Applicant should not go to school anymore.
6. The school year had almost come to an end. The Applicant did not attend the remaining classes. He nevertheless managed to graduate.
7. In mid-2011, the Applicant went back to school to enrol for a post-secondary course. He was stopped by his enemies. The Applicant was threatened he would be killed if they saw him again.
8. The Applicant made a report to police but the police officer refused to register his case. He was told to go away. The police even said the Applicant should join AL.
9. The following day, the Applicant was told by his family members that some AL members had come to look for him. They said they would kill him because he had complained to the police. Those people also tried to occupy the land belonging to the Applicant’s family. The Applicant was frightened on hearing all these. He left home to stay with a friend. His father told him the AL people continued to look for him.
10. A month later, when the Applicant was hanging around in the Brahmanbaria District with his friends some armed men tried to attack them. The Applicant and his friends managed to escape. He fled to Chittagong to stay with another friend.
11. The Applicant subsequently learnt from the news that one of his friends Didar had been shot dead by the AL people. The Applicant claimed the enemies tried to shoot him but Didar got hit instead. The Applicant said he was wrongly implicated in Didar’s killing.
12. A few days later, the Applicant was attacked by five men. He was injured. He later learnt that the attackers were AL members.
13. The Applicant felt desperate. He returned to his home village. He was told some unknown men were trying to locate him there.
14. The Applicant decided to leave Bangladesh. He travelled to India but saw some people from his home town. He was afraid and returned to Bangladesh on the same day.
15. The Applicant subsequently tried to leave Bangladesh for China by air on two occasions. He refused to bribe the immigration officers so he was not successful to depart on those two occasions.
16. Later, the Applicant's agent settled the bribe. The Applicant finally departed Bangladesh for China on 19 October 2011. He sneaked into Hong Kong on 22 October 2011. The Applicant was arrested by the police some 28 months later on 2 March 2014 for illegal remaining. He raised a non-refoulement claim subsequently.
17. In late 2014, the Applicant was told by his father on the phone that some AL members asked him to get the Applicant back. The Applicant's father refused their request. Those people then assaulted the Applicant’s father and brothers. The AL people even made false accusation against the Applicant’s father and brothers. The father was arrested but released on bail. The Applicant's brothers absconded out of fear.
18. The AL people continued to occupy the land belonging to the Applicant’s family. The Applicant’s father tried to complain to the police but the police ignored him. The Applicant’s family had to leave their village subsequently.
19. The Applicant feared he would be harmed or persecuted by the AL people. He also feared he would be arrested by the Bangladesh police and tried by the court for the false accusation against him relating to Didar’s murder. He feared he would be sentenced to death.
20. 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].
21. On 22 March 2018, the Applicant applied for leave for judicial review.
Timeline
22. Things happened in this order: –
| 2011-10-19 |
The Applicant left Bangladesh for China. |
| 2011-10-22 |
The Applicant sneaked into Hong Kong from China. |
| 2014-3-2 |
The Applicant was arrested by the police. |
| 2014-3-8 |
The Applicant filed a non-refoulement claim. |
| 2016-2-3 |
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”] |
| 2016-12-8 |
The Director invited the Applicant to submit additional facts for the consideration of the fourth applicable ground: BOR2 risk. |
| 2016-12-16 |
The Applicant submitted a letter to the Director via the Duty Lawyer Service (“DLS”). |
| 2016-12-23 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [“the Director’s further decision”] |
| 2017-12-28 |
The Applicant appeared with his lawyer before the Board for appeal. |
| 2018-2-26 |
The Board refused the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-3-22 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
23. 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.
24. 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]
25. 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.
26. The Adjudicator was not acting in his personal capacity. He represented the Board. In court, the Applicant agreed to change to sue the Board in lieu of the Adjudicator. Thus, the Board is the putative respondent; the Director is the putative interested party.
The Director's decision
27. In his decision dated 3 February 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.
28. On 23 December 2016, the Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk.
The Board's decision
29. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 28 December 2017. The Applicant was accompanied by a duty lawyer.
30. Some documents had been submitted by the Applicant. The Adjudicator was prepared to accept the official documents. He was also prepared to accept the trial process described by the Applicant's lawyer in Bangladesh but he would not accept the Bangladesh lawyer’s personal view of the political situation in the country. The Adjudicator considered the Bangladesh lawyer only made such view to serve the Applicant's non-refoulement claim.[6]
31. Although the Bangladesh official documents implicated the Applicant in the killing of Didar, the Adjudicator found the Applicant himself did not give truthful evidence regarding the circumstances of Didar’s death: what weapons were used by the attackers and whether the Applicant was really present at the scene when Didar was shot.[7]
32. While the Applicant claimed he came to Hong Kong for asylum, the Adjudicator noted the Applicant only raised his non-refoulement claim after he had been arrested by the police. That was almost two and a half years after he had arrived in Hong Kong. The Adjudicator did not accept the Applicant's explanation of ignorance for non-action during those many months.[8] The Adjudicator did not accept the Applicant was a genuine non-refoulement protection seeker.
33. Even on the Applicant's own account of events, the Adjudicator found the Applicant had not been suffered severe pain and suffering (physical or mental). He considered the alleged enemies had no real intention to kill or harm the Applicant.[9] The complained situation was a private quarrel between the Applicant and his enemies. There was no state involvement, consent or acquiescence. [10] Several years had passed by now.[11] The Adjudicator also considered after referring to relevant country-of-origin information ("COI") that the Applicant would not be denied of justice even if he had to stand trial in Bangladesh.[12]
34. On 26 February 2010, the Adjudicator found the Applicant failed to establish any real risk that warranted non-refoulement protection. He refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR 2 risk and BOR 3 risk.
Grounds of judicial review
35. 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.
36. 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 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.
37. The Applicant complained there were failures by the assigned duty lawyer at first instance resulting in a lack of and/or insufficient legal representation.
38. The Applicant also complained he was given the appeal bundle only a few days before the Board hearing. As such, he could not well 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.
39. 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
40. The hearing took place on 16 July 2018. The Applicant was in person. A Bengali interpreter provided service in court.
41. The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. The Applicant had nothing to add to those grounds. He just repeated the basis of his claim.
42. 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
43. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
44. 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’.[13] 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.” [14]
45. It was wrong for the Applicant to say the Director had not screened his non-refoulement claim with respect to BOR2 risk. The Director’s further decision dated 23 December 2016 was on BOR2 risk. The Applicant had made further submission to the Director. The Director considered all the facts. He need not hold further interview. The Director’s further decision should be read in conjunction with his earlier decision dated 3 February 2016, where there was a detailed analysis of the Applicant’s case.
46. The Applicant complained there were failures by the assigned duty lawyer at first instance. The Applicant failed to provide particulars in this regard.
47. The Applicant complained there was a lack of and/or insufficient legal representation. He said he was not represented when he prepared for appeal to the Board. That was not correct. The Applicant was represented by the Duty Lawyer Service (“DLS”) up to the Board hearing. A duty lawyer, Mr. Li, represented him on 28 December 2017 before the Adjudicator.
48. 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. After all, the Applicant had been represented by DLS during the whole screening process including the Board hearing. There were qualified interpreters to assist him. The Applicant had much exaggerated his language problem.
49. The Applicant complained he received the appeal bundle only a few days before the Board hearing.
50. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[15] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[16], 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.
51. The Director stated in his letter dated 11 September 2018 that the appeal bundle was sent to DLS on 24 February 2017. That was many months prior to the Board hearing which took place on 28 December 2017. The bundle was served on the Applicant in good time.
52. The Applicant said he had difficulty to prepare for his appeal. However, he was still represented by DLS at that stage.
53. The Applicant said he answered all the questions honestly in the Board hearing.[17] That would mean he knew well what was asked and how to answer. He was certainly not confused.
54. The Applicant complained the Adjudicator had not considered the issues of state protection and state acquiescence. The Adjudicator did consider there was no state acquiescence in the Applicant’s complained situation. He also found that the Applicant would not be denied of justice if he stood trial in Bangladesh. The Adjudicator’s conclusions were not Wednesbury unreasonable.
55. The Applicant complained the Adjudicator failed to call for 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. The Applicant failed to prove there was such a need.
56. There was no evidence the Adjudicator cherry-picked information or took into account outdated cases/irrelevant information/information not officially recognised or simply hearsay.
57. There was also no evidence the Adjudicator misdirected himself in law or applied the wrong standard of proof.
58. 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 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 of the case. 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. None of the Applicant’s complaints is substantiated.
Conclusion
59. 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 the review.
Dated 24th day of December 2018
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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 24/12/2018
Asha Dullah
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 24/12/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 3135/16/2/101/B418
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1063/15 & RBCZ/9001060/16 (formerly RBCZ 2046/14)
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] The Board’s decision, paras 50-58.
[7] Ibid., paras 43-49, 62.
[8] Ibid., paras 35-40.
[9] Ibid., paras 27-30.
[10] Ibid., para 63
[11] Ibid., para 62.
[12] Ibid., paras 69-82.
[13] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[14] CACV 219/2018 [2018] HKCA 570, para 14(1).
[15] 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.
[16] 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.
[17] The Applicant's affirmation, Point 13 on page 4.
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