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HCAL 1076/2018
[2018] HKCFI 2726
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1076 of 2018
BETWEEN
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Rahman Mohammad Arifur |
Applicant |
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Li Kwok-wai, the Adjudicator of the
Non-Refoulement Claims Petition Office |
Respondent |
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Director of Immigration |
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 K.W. Lung:
Leave to apply for Judicial Review be granted.
Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):
THE APPLICATION
1. This is the applicant’s application for leave for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as interested party.
The applicant
2. The applicant is a Bangladeshi national, who came to Hong Kong illegally and was arrested by police on 14 January 2015. He was referred to the Immigration Department for investigation on 15 January 2015. On 17 January 2015, he lodged his non-refoulement claim. He claimed that if he was refouled back to Bangladesh, he would be harmed or even killed by the people of the Awami League and its student wing Chatra League for his dispute with them and also, the Bangladeshi police had a criminal case against him.
The Director’s Decision
3. The Director had considered his application by reference to the risks below:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);
b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”).;
c. persecution with risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and
d. reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk under RC”)
4. By Notice of Decision (“the Director’s Decision”) dated 6 February 2017, the Director rejected the applicant’s claim for the reasons that his claims were not substantiated.
The Board
5. The Applicant appealed to the Board and attended a hearing on 20 February 2018.
6. Legal representatives for the applicant and the Director were also present before the Adjudicator.
7. By Decision dated 28 May 2018 (“the Board’s Decision”), the Board refused the applicant’s appeal and confirmed the Director’s Decision.
DISCUSSION
Hearing afresh
8. The Adjudicator relied upon the authority of AM v The Director of Immigration HCAL 102/2012 and decided that he should ‘consider the Appellant’s non-refoulement claim “afresh”, namely as if it comes to me the first time. It is a rehearing so I have to consider all issues of facts (including issues of credibility) and law, and come to my own conclusion based on the relevant Country of Origin Information (“COI”)’[1]
9. The Adjudicator further said in his Decision that it was unnecessary for him to deal with the 13 grounds of appeal submitted by Mr. Wong of the Duty Lawyer Scheme, who represented the applicant because the appeal was a rehearing.[2]
10. The Adjudicator made the enquiries. However, instead of hearing the evidence the first time, he compared the applicant’s evidence at the hearing with those statements or materials which the applicant gave to the immigration officer in the screening. The Adjudicator found discrepancies in the evidence given by the applicant in the screening process and at the appeal hearing. At paragraph 19 of his Decision, he said:
“ There are indeed significant internal inconsistencies between the initial Interview Report and the subsequent NCF as well as the Interview insofar as the factual basis for his non-refoulement claim is concerned. Those inconsistencies go to the heart of his claim…. I am unable to do so simply by picking and choosing from those two versions.”
11. He disbelieved the applicant and on that basis, he rejected the applicant’s claims on the above risks.
12. He is entitled to re-examine the evidence in relation to the facts under Section 18 of Schedule 1A of the Immigration Ordinance, Cap.115 (“the Ordinance”)[3]. In fact, he is under a duty to do so.
The role of the Board is supervisory
13. However, I wish to point out that the role of the Board is supervisory as held by the Court of Appeal.
14. In TK v Michael Jenkins Esq (unreported, HCAL 126/2010, Lam J, 21 October 2011), Lam J. (as he then was) stated:
“ The role of the court in a judicial review application in respect of the decisions of the Secretary for Security under CAT was considered by the Court of Final Appeal in Secretary for Security v Prabakar (2004) 7 HKCFAR 187. In my judgment, the same approach is apposite in a case where the claimant petitioned to the Chief Executive and a decision was made by an adjudicator in respect of CAT claim.”
15. The Court of Appeal in TK v Jenkins & Another [2013] 1 HKC 526 held:
“ A decision of the adjudicator under the enhanced screening mechanism is subject to judicial review. However, the court does not sit on appeal from the adjudicator’s decision. It only plays a supervisory role in the judicial review. The standard of review is that of “rigorous examination and anxious scrutiny”: Prabakar, para 45.” [40] … Of course, on a judicial review the role of the High Court is not to determine the merits of the applicant’s failed Convention claim but rather to ensure that there has been no deficiency in the process that the applicant has undergone which has resulted in his claim being refused.”
16. The role of the Board is therefore supervisory. The distinction between the supervisory role of the Adjudicator and that of the Court of the First Instance in judicial review is that the Adjudicator also has the role of fact finding. Such power is provided under section 18 of Schedule 1A of the Ordinance. The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §13: “Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….”
17. In AM, the court set out the ways re-hearing may be done. At paragraph 30 of his judgment, the learned judge said:
“ A rehearing can take different forms. It can take place just on the papers or it can involve the calling of witnesses. Given the fact that it is clearly anticipated that the Adjudicator is expected to resolve issues of credibility and for this purpose should conduct an oral hearing, there will be occasions when the adjudication process will require the calling of witnesses and the taking of evidence. But, this will not always be the case. …”
Should the Board re-hear indiscriminately?
18. Given the supervisory role of the Board and the flexible ways of the re-hearing, the Board should not, in my view, simply brush aside the grounds of appeal submitted by the applicant.
19. In my opinion, the Board should discharge its supervisory duty to consider the applicant’s appeal against the Director’s Decision.[4] The Board may consider the same evidence before the immigration officer[5]. The Board may also consider other evidence as provided under Section 18 (2) of Schedule A of the Ordinance. As to what way the Board should adopt, it is entirely the Board’s discretion. That is to say, whether the Board will re-hear the applicant wholesale or any part or parts of the applicant’s evidence before the immigration officer, which he wants to clarify, it is within his power to do so. But he may have to give his reasons if he is to have a wholesale re-hearing of the evidence because his decision to ignore the evidence given by the applicant to the immigration officer, which he is entitled to consider and rely upon for his determination, will incur extra time and cost.
Re-hearing without considering the grounds of appeal by the Board
20. Here, the Adjudicator has not set out his reasons why he was unable to consider the evidence that the applicant had given to the immigration officer. He said that since it was a re-hearing, it was unnecessary for him to deal with the grounds of appeal before him. This approach may render the unified screening mechanism otiose. The Board relinquished its supervisory role under the Ordinance. It may also take away the applicant’s right of appeal before the Appeal Board.
21. The screening process is provided under section 37ZB of the Ordinance and the power of the Board is provided under Schedule 1A of the Ordinance. It is inconceivable that the Board’s investigatory power of the facts should render the screening by the immigration officer otiose.
22. The Adjudicator has not set out the 13 grounds of appeal in the Board’s Decision. He did not say that those grounds were irrelevant to the appeal. As the applicant was legally represented, I may assume that those grounds were prepared by his lawyer, relevant to the challenge against the Director in the screening process.
23. It is clear that the Adjudicator has, for the reasons that he had given, made his Decision without considering the grounds of appeal.
Application for leave for judicial review
24. By Form 86 dated 12 June 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Board’s Decision.
25. For the reasons above, I consider that leave should be granted to the applicant for judicial review of the Board’s Decision.
CONCLUSION
26. Accordingly, I grant leave to the applicant for judicial review of the Board’s Decision.
Dated 13th 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 13/12/2018
Rahman Mohammad Arifur
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 13/12/2018
Li Kwok-wai, the Adjudicator of the Non-Refoulement Claims Petition Office
Respondent’s ref. no.:
USM 6205/17/2/204/B760
Director of Immigration
Interested Party’s ref. no.:
QA T/C 2740/16 (formerly RBCZ 10273/15))
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] §6 of the Adjudicator’s Decision dated 28 May 2018
[2] §7 ibid
[3] Evidence considered by Appeal Board in an appeal under section 37ZR
(1) In an appeal under section 37ZR, the Appeal Board has the power to review the merits of the case, and accordingly it may consider—
(a) the same evidence that was before an immigration officer; and
(b) if subsection (2) applies, evidence that was not before an immigration officer.
(2) The Appeal Board may consider evidence that was not before an immigration officer if—
(a) the evidence relates to matters that have occurred after the decision being appealed against was made;
(b) the evidence was not reasonably available before the decision being appealed against was made; or
(c) the Board is satisfied that exceptional circumstances exist that justify the consideration of the evidence.
[4] Section 37ZQ(2) of the Ordinance:
The function of the Appeal Board is to hear and determine—
(a) an appeal made under section 37ZR
[5] Section 18(1)(a) of the Ordinance
(1) In an appeal under section 37ZR, the Appeal Board has the power to review the merits of the case, and accordingly it may consider—
(a) the same evidence that was before an immigration officer;
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