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HCAL206/2018
[2019] HKCFI 2052
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 206 of 2018
BETWEEN
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MD Kykobad alias Kay Kobad |
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 30 (DOB: 1 May 1989).
2. The Applicant claimed he would be harmed or killed by people of the Chatra League (“CL”) and the Awami League (“AL”). [CL was the student wing of AL.] The Applicant said he was a general secretary of Chatra Dal (“CD”), the student wing of the Bangladesh Nationalist party (“BNP”). AL and BNP were in opposition to each other.
3. The Applicant started to support BNP in 2008. He became a member of CD in 2011 and later a union-level general secretary of CD. His enemies included Dulal and Shamim of CL. Dulal was a union-level chairman of CL. He was influential and powerful. Shamim was a CL member.
4. The Applicant said his enemies targeted him. They demanded him to quit BNP to join AL. He refused.
5. In 2011, the Applicant was attacked by his enemies. He complained to the local police but the duty officer refused to register his case. The officer even said the Applicant was the assailant. He also told the Applicant that Shamim had filed two cases against him for robbery and forceful occupation of others’ land and property. The officer threatened to arrest him and asked him to leave the police station.
6. The Applicant later heard from a CD member that the police had been instructed not to assist him. He also learnt the CL people had filed a false complaint against him of kidnapping a girl.
7. The Applicant fled to Dhaka.
8. Between 2011 and 2012, the Applicant was attacked three more times even though he moved around to dodge his enemies. They harassed and threatened to kill him.
9. The Applicant went back to Dhaka and finally left Bangladesh for China on 2 October 2012.
10. On 20 March 2014, the Applicant entered Hong Kong illegally from China. He did not seek asylum immediately. On 24 April 2014, he was arrested by the police. The Applicant served imprisonment till 23 August 2014. Then he raised a non-refoulement claim.
11. The Adjudicator last contacted his family in Bangladesh in February 2016. He was told his enemies were still looking for him.
12. The Applicant alleged the Bangladesh police would side with his enemies. Internal relocation was not feasible.
13. 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 (“the Board”) respectively rejected 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].
14. On 12 February 2018, the Applicant applied for leave for judicial review.
Respondent/Interested party
15. 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.
16. 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]
17. 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
18. In his decision dated 3 August 2016, 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 rejected the Applicant’s claim with respect to those three applicable grounds.
19. In his further decision dated 19 September 2017, the Director rejected the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk.
The Board's decision
20. The Applicant appealed to the Board. The Adjudicator interviewed him on 8 January 2018.
21. The Adjudicator noted the Applicant's allegations were mere assertions and he did not seek non-refoulement protection soon after he had entered Hong Kong. The Adjudicator found there was no evidence to support the Applicant's claim that he had been assaulted by his alleged enemies on a number of occasions. The Applicant failed to prove he had been inflicted with severe pain or suffering or ill-treatment to a minimum level of severity. The complained situation was only a private dispute and not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). There was no evidence of state involvement, consent or acquiescence. The Applicant had only complained once to the local police. The Adjudicator considered relevant country-of-origin information ("COI"). He was satisfied reasonable state protection was available to the Applicant. Internal relocation was also viable.
22. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 6 February 2018, he rejected the Applicant's appeal with respect to all the four applicable grounds.
Grounds of judicial review
23. 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.
24. The Applicant complained he lacked legal representation and language assistance after the Director's decision.
25. 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.
26. The Applicant further complained the Adjudicator relied on outdated cases or information not officially recognized or simply hearsay.
Court hearing
27. The hearing took place on 3 September 2018. The Applicant was in person. A Bengali interpreter provided service in court.
28. 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 his grounds.
29. 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
30. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
31. 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]
32. The Applicant complained there was a lack of legal representation after the Director's decision dated 3 August 2016.
33. 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 his case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
34. The Applicant raised his language problem.
35. It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.[9]
36. In the current application, a friend helped the Applicant 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 being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
37. The Applicant complained he received the appeal bundle only a few days before the Board hearing.
38. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[10] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[11], 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.
39. The Applicant said he received appeal bundle on 2 January 2018. That was 6 calendar days (or 5 working days) prior to the Board hearing scheduled for 8 January 2018. The bundle was served on the Applicant in time.
40. 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.
41. 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.
42. The Applicant said he answered all the questions honestly in the Board hearing.[12] That means he knew what was asked and how to answer. He was not confused.
43. There was no evidence the Adjudicator had taken into account outdated cases or information not officially recognised or simply hearsay.
44. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding 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
45. The Applicant's complaints are not reasonably arguable. He has no realistic prospect of success in the sought judicial review. I therefore refuse to grant him leave to apply for judicial review.
Dated the 19th day of August 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 19/8/2019
MD Kykobad alias Kay Kobad
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 19/8/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4392/16/8/111/B597
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 15/16 & RBCZ 9002657/17 (formerly RBCZ 2729/14)
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] See Re Zaman Muhammad [2018] HKCA 486 at [13]; Re Gurnishan Singh [2018] HKCA 704 at [13].
[10] 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.
[11] 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.
[12] The Applicant's affirmation, Point 8 on page 4.
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