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HCAL938/2018
[2019] HKCFI 1902
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 938 of 2018
BETWEEN
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MD Nahid |
Applicant |
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William Lam, Esq. |
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:
(1) Application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 27 October 2014 be dismissed ; no extension of time is granted; and
(2) Application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 14 May 2018 be refused.
It is further directed that:
(1) If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 27 October 2014 to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;
(2) When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;
(3) The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;
(4) If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions;
(5) Liberty to apply.
Observations for the Applicant
Background
1. The Applicant is a national of Bangladesh. He is now aged 38 (DOB: 5 November 1980).
2. The Applicant claimed he would be harmed or killed by his friends who had split into two groups: one supporting the Awami League (“AL”) and the other supporting the Bangladesh Nationalist Party (“BNP”). He refused to join either party.
3. The Applicant said he used to hang out with ten odd friends. Around 2006, his friends split into two groups: one supported AL while the other supported BNP. The Applicant remained neutral and did not join either group. However, the AL group wrongly thought the Applicant had joined BNP. They assaulted the Applicant and threatened him to join AL, otherwise the Applicant would face a big problem. Yet, they did not state what the problem would be. The Applicant was scared. He did not make any report to the police as he thought the police would side with political parties.
4. The Applicant left home. He went to Dhaka to stay with his aunt. His family informed him the enemies asked of his whereabouts. The Applicant took his father’s advice to come to Hong Kong to seek asylum.
5. The Applicant left Bangladesh for Hong Kong on 22 May 2006. He was allowed to stay here till 5 June 2006. He overstayed and was arrested on 30 August 2007. He lodged a torture claim on 8 September 2007.
6. The Applicant said he did not know how to apply for torture claim until he had been arrested.
7. In the ensuing two-tier screening process, 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].
8. On 25 May 2018, the Applicant applied for leave for judicial review.
Timeline
9. Things happened in this order: –
| 2006-5-22 |
The Applicant left Bangladesh. He arrived in Hong Kong as visitor. He was allowed to stay until 5 June 2006. |
| 2006-6-6 |
The Applicant began overstaying in Hong Kong. |
| 2007-8-30 |
The Applicant was arrested by the police. |
| 2007-9-8 |
The Applicant filed a torture claim. |
| 2014-7-16 |
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”] |
| 2014-9-18 |
The Applicant filed his appeal against the Director's decision. |
| 2014-10-27 |
The Adjudicator refused the Applicant’s appeal against the Director's decision with respect to torture risk, persecution risk and BOR3 risk. [“the Board's 2014 decision”]. |
| 2016-12-20 |
The Director invited the Applicant to submit additional facts for the consideration of the fourth applicable ground: BOR2 risk. |
| 2017-1-3 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-1-10 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [“the Director’s further decision”] |
| 2018-2-12 |
The Applicant appeared before the Board for appeal against the Director's further decision. |
| 2018-5-14 |
The Board refused the Applicant’s appeal against the Director's further decision. [“the Board’s 2018 decision”] |
| 2018-5-25 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
10. 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.
11. In Re Moshsin Ali, the Court of Appeal ruled “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]
12. In Form 86, 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
13. In his decision dated 16 July 2014, the Director did not accept the Applicant faced any torture risk, persecution risk or BOR3 risk. He also found 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.
14. In his further decision dated 10 January 2017, the Director did not accept the Applicant faced any BOR2 risk. The Director refused the Applicant's claim with respect to that last applicable ground.
The Board's decision
2014
15. The Applicant appealed late to the Board against the Director's decision. The Adjudicator decided the late appeal on consideration of papers.
16. The Director's decision was dated 16 July 2014. The Applicant only filed his appeal on 18 September 2014. Excluding the 14-day limitation period, the Applicant was about one and half months late. He stated in his belated Notice of Appeal that he was detained in the Castle Peak Bay Immigration Centre. He also said he did not know how to complete the notice and did not how to send it or where to send it. The Adjudicator did not consider the Applicant had given any good reason for the delay.
17. Nevertheless, the Adjudicator went on to consider the merit of the Applicant’s case. He found there was no state involvement or state acquiescence of any form. The Applicant was not targeted by the Bangladesh state or officials. The complained situation was not on account of any Convention reasons: race, religion, nationality, membership of a particular social group or political opinion. He had not suffered ill-treatment to the minimum level of severity. The alleged persecution occurred a number of years ago. The Adjudicator found no reason the alleged enemies would still go after the Applicant. The Applicant had not enlisted the help of the Bangladesh police. The Adjudicator studied relevant country-of-origin information ("COI"). He was satisfied reasonable state protection and internal relocation were available to the Applicant in any event.
18. The Adjudicator noted the Applicant did not file his non-refoulement claim until he had been arrested by the police. That was some months after he had arrived in Hong Kong, claiming to be a visitor. The Adjudicator further noted the Applicant defaulted in responding to the Director by not answering telephone calls many times and failed to attend the three screening interviews (once claiming to be sick without medical proof). The Adjudicator was not satisfied the Applicant was a genuine asylum seeker.
19. The Adjudicator concluded there was no merit in the Applicant's case that obliged him to grant the Applicant extension of time to file his late appeal.
20. On 27 October 2014, the Adjudicator dismissed the Applicant's appeal against the Director's decision in relation to these three applicable grounds: torture risk, persecution risk and BOR3 risk.
2018
21. The Director later considered the Applicant's case with respect to BOR2 risk. In his further decision dated 10 January 2017, the Director did not accept the Applicant faced any BOR2 risk. He refused the Applicant's claim with respect to that last applicable ground.
22. The Applicant appealed to the Board on 22 February 2017. He was again late but the Adjudicator heard him this time on 12 February 2018.
23. The Adjudicator noted the Applicant had not submitted additional materials to the Director. He found the Applicant only made vague complaints against the Director's further decision without proof.
24. Having heard the Applicant, the Adjudicator found the Applicant was dishonest and unreliable.
25. The Adjudicator studied updated country-of-origin information ("COI"). He was satisfied reasonable state protection and internal relocation were available to the Applicant in any event.
26. The Adjudicator did not accept the Applicant faced any BOR2 risk. On 14 May 2018, he refused the Applicant's claim with respect to that last applicable ground.
Grounds of judicial review
27. In Form 86, the Applicant originally only mentioned the Board's 2018 decision. He added the Board's 2014 decision on the day of hearing, i.e. 20 September 2018. His grounds of review were, however, merely focussed on the Board's 2018 decision.
28. 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.
29. 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.
30. The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of or insufficient legal representation.
31. 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.
32. The Applicant also complained the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay.
Court hearing
33. The hearing took place on 20 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. He confirmed all the grounds of judicial review were in the documents.
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.
36. The Applicant claimed he did not get the Director's decision dated 16 July 2014 in time. He appealed against the Director's decision only on 18 September 2014. He said there was an address problem. He also said he had been detained by the Immigration Department between September and December in 2014.
Discussion
37. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
38. 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]
Late application for leave for judicial review of the Board's 2014 decision
39. Order 53 rule 3(1) of the Rules of the High Court reads: –
No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.
40. Order 53 rule 4(1) and (2) of the Rules of the High Court read: –
(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.
(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.
41. It is clear from these provisions that no application can be made after the three-month period unless the Court considers that there is good reason for extending time. The Applicant must provide good reason for the Court to give an extension of time. It is a pre-requisite in late application for leave for judicial review.[8] If the court is not satisfied that there is good reason for extending time, then no application for judicial review can be made in accordance with rule 4(1). In that event, the Court should not proceed to consider if leave should be granted or refused on other grounds.[9]
42. In the present case, the Board’s 2014 decision was issued on 27 October 2014. The Applicant only applied for leave for judicial review in court on 20 September 2018. Excluding the 3-month grace period for filing, he was late for almost 44 months.
43. The Applicant failed to explain for his long delay. There was no good reason given. The Applicant did not state his grounds of review in relation to the Board's 2014 decision either. The delay was undue and substantial. The prejudice that would be caused to the putative respondent would not be insignificant.
44. The Court of Appeal has stated clearly that if an applicant could not give good reason for his delay, the court should not proceed to consider if leave should be granted or refused on other grounds (see para 41 above). In any event, the Applicant did not specify his complaints regarding the Board's 2014 decision. I dismiss the Applicant's application for leave for judicial review in relation to the Board's 2014 decision.
45. I now turn to the Applicant's application for leave for judicial review in relation to the Board's 2018 decision, which must be read in conjunction with the Board's 2014 decision.
46. The Applicant complained there were failures by the assigned duty lawyer. He gave no specifics. In fact, the Applicant gave no further instruction to the Duty Lawyer Service (“DLS”) in January 2014 so the DLS had ceased to act for him since 24 January 2014.[10]
47. The Applicant mentioned he was not legally represented for his appeal to the Board.
48. 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.[11] As said, the Applicant had given no further instruction to the Duty Lawyer Service (“DLS”) since January 2014.
49. The Applicant raised his language problem.
50. It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.[12]
51. In the current application, the Applicant had a friend to prepare Form 86 and the affirmation for him in English. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. He was assisted by a qualified interpreter when he appeared before the Adjudicator in February 2018. The Applicant had much exaggerated his language problem.
52. The Applicant complained he received the appeal bundle only a few days before the Board hearing.
53. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[13] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[14], 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.
54. The Applicant said he received the appeal 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.
55. 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.
56. 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 on 12 February 2018.
57. The Applicant failed to show there was any necessity for the Adjudicator 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.
58. The Adjudicator had considered the issues of state protection and state acquiescence. He found there was no question of state acquiescence and that reasonable state protection was available to the Applicant in any event. His findings were not Wednesbury unreasonable.
59. There was no evidence the Adjudicator cherry-picked information or took into account outdated cases, irrelevant information, information not officially recognised or simply hearsay.
60. There was no evidence the Adjudicator misdirected himself in law or applied the wrong standard of proof.
61. I have reviewed the Board’s 2014 and 2018 decisions 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. 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
62. The Applicant's application for leave for judicial review in relation to the Board's 2014 decision is late. He fails to show any good reason to justify the delay. There are no circumstances that oblige the court to consider his late application in relation to the Board's 2014 decision. That part of his application is therefore dismissed.
63. As to the Applicant's application for leave for judicial review in relation to the Board's 2018 decision, his complaints are not reasonably arguable. He has no realistic prospects of success. I therefore refuse to grant him leave for judicial review for that part of his application.
Dated the 30th day of July 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
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 30/7/2019
MD Nahid
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 30/7/2019
William Lam, Esq.
Putative Respondent’s ref. no.:
USM 244/14/9/71/B46 & BOR 202/17/2/111/B27
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 502/07 & RBCZ 9001166/16 (formerly RBCZ 1156/07)
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 110/2016 Kwok Cheuk Kin, para 17.
[9] Ibid., para 19.
[10] The Director's decision dated 16 July 2014, para 6.
[11] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[12] Re Zaman Muhammad [2018] HKCA 486 at [13]; and Re Gurnishan Singh [2018] HKCA 704 at [13].
[13] 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.
[14] 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.
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