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HCAL455/2018
[2019] HKCFI 24
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 455 of 2018
BETWEEN
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Sorip Khan |
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 37 (DOB: 3 May 1981).
2. The Applicant joined the Awami League (“AL”). He did not hold any particular position but his uncle Anwar Hossain was the President of the Kaliganj District Chapter. Since, 2002, the Applicant acted on his uncle’s instruction to throw bombs at their political enemies. Between 2002 and 2003, the Applicant had been arrested by the Bangladesh police three times. Each time, his uncle bribed the police and got him released. The Applicant continued to throw bombs on the instruction of his uncle.
3. In November 2004, the Applicant learnt his uncle was arrested and killed by the Bangladesh special police force, the Rapid Action Battalion (“RAB”). He also learnt that he was on RAB’s wanted list. The Applicant feared he would be caught, tortured and killed by RAB. He thus fled.
4. Before his uncle was killed, the Applicant had already been to Hong Kong twice in 2004. On 24 May 2004, he entered Hong Kong as visitor. He left accordingly subsequently. One odd month later, on 11 July 2004, the Applicant came to Hong Kong again but on the strength of his brother’s passport. He overstayed this time and was arrested in October 2004. On 19 November 2004, he was repatriated to Bangladesh.
5. Four months later, on 22 March 2005, the Applicant last entered Hong Kong as visitor. He did not depart accordingly and began overstaying here from 29 March 2005. He was arrested on the same day and subsequently lodged a torture claim[1], which was rejected by the Director of Immigration (“the Director”). [There is no information whether the Applicant had appealed against the Director's decision on torture risk.]
6. On 29 June 2016, the Applicant raised a non-refoulement claim.
7. In the ensuing two-tier screening process here, 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 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].
8. On 20 March 2018, the Applicant applied for leave for judicial review.
Timeline
9. Things happened in this order: –
| 2004-5-24 |
The Applicant entered Hong Kong as visitor. He left accordingly later. |
| 2004-7-11 |
The Applicant came to Hong Kong again but on the strength of his brother’s passport. |
| Oct 2004 |
The Applicant was arrested. |
| 2004-11-19 |
The Applicant was repatriated to Bangladesh. |
| 2005-3-22 |
The Applicant entered Hong Kong as visitor. He did not depart accordingly. |
| 2005-3-29 |
The Applicant began overstaying in Hong Kong. He was arrested on the same day. He subsequently lodged a torture claim, which was later rejected by the Director. [There is no information whether the Applicant had appealed against the Director's decision on torture risk.] |
| 2016-6-29 |
The Applicant raised a non-refoulement claim. |
| 2017-1-25 |
The Director refused the Applicant's claim with respect to the remaining three applicable grounds: persecution risk, BOR2 risk and BOR3 risk. [“the Director's decision”] |
| 2018-1-17 |
The Applicant appeared before the Board for appeal. |
| 2018-3-15 |
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 decision”] |
| 2018-3-20 |
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 complaint 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 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
13. The Applicant was arrested on 29 March 2005. He subsequently lodged a torture claim, which was rejected by the Director. [There is no information whether the Applicant had appealed against the Director's decision on torture risk.]
14. On 25 January 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 Director refused the Applicant’s non-refoulement claim with respect to those three applicable grounds.
The Board's decision
15. The Applicant appealed against the Director's 2017 decision. The Adjudicator interviewed the Applicant on 17 January 2018.
16. The Adjudicator considered that in the three alleged arrests by the Bangladesh police, the Applicant was only assaulted once. He had not been inflicted with severe pain and suffering. The Adjudicator found there was no evidence the Applicant had been pursued by RAB. The Applicant was able to leave Bangladesh without difficulty at the immigration control. The Adjudicator did not accept the Applicant was on RAB’s wanted list. He also noted that the Applicant did not seek protection as soon as he came to Hong Kong. He did not believe the Applicant was a genuine non-refoulement protection seeker.
17. The Adjudicator found the Applicant had not made out a case that warranted non-refoulement protection with respect to persecution risk, BOR2 risk or BOR3 risk. On 15 March 2018, he refused the Applicant’s appeal with respect to those three applicable grounds.
Grounds of judicial review
18. 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.
19. The Applicant complained he was given the appeal bundle only 7 days before the appeal hearing. He was unrepresented and did not have sufficient time to prepare for the appeal due to language problem. The Applicant said he was confused. He complained the Adjudicator failed to make appropriate arrangement.
20. The Applicant also accused the Adjudicator relied on outdated cases or information not officially recognized or simply hearsay.
Court hearing
21. The hearing took place on 16 July 2018. The Applicant was present. A Bengali interpreter provided assistance in court.
22. 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. He had nothing to add to those grounds.
23. The Applicant also confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
24. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
25. 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 that:
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]
26. The Applicant mentioned he did not have legal representation for appeal to the Board. He had been represented by the Duty Lawyer Service up to the Director's decision dated 25 January 2017.
27. 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 could not show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
28. In court, the Applicant admitted 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.
29. The Applicant complained he received the appeal bundle only on or about 10 January 2018.
30. 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.
31. The Applicant received the appeal bundle 7 calendar days (or 6 working days) prior to the appeal hearing scheduled for 17 January 2018. The bundle was served on him in time.
32. 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 and there was no evidence to show the bundle was difficult or voluminous.
33. A few days were certainly 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 the appeal. There was no evidence he had complained to the Adjudicator or asked for adjournment during the appeal hearing.
34. The Applicant said he answered all the Adjudicator’s questions honestly.[11] That means he knew well what was happening in the appeal hearing. He was not confused.
35. The Applicant accused the Adjudicator relied on outdated cases or information not officially recognized or simply hearsay. There was no such evidence.
36. 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. He 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
37. 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 8th day of January 2019
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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 8/1/2019
Sorip Khan
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 8/1/2019
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6043/17/2/42/B740
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 74/17 (formerly RBCZ 12412/16 Pt.2
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 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.
[11] The Applicant's affirmation, Point 8 on page 4.
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