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HCAL1110/2017
[2018] HKCFI 1256
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1110 of 2017
BETWEEN
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Faruk Md |
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 Bangladesh national. He is now aged 48 (DOB: 25 March 1970).
2. The Applicant claimed that he belonged to the Bangladesh Nationalist Party (“BNP”). He feared he would be harmed or killed by some people of the Awami League (“AL”), which was the ruling party in the country.
3. The Applicant said he joined BNP in 2010. He assisted BNP in the 2014 General Election. He was an enthusiastic member so the AL people targeted him.
4. In February 2014, some AL members came to the Applicant’s shop. They threatened the Applicant that he could not run his business due to his involvement in BNP’s activities. They beat him and his cousin before locking them up in the shop. The Applicant and his cousin managed to escape later. The Applicant asked his mother to report the matter to the police. However, the police ignored her. The Applicant believed it was because the police favoured AL.
5. In March 2014, the same AL people came to the Applicant’s shop again. Some were armed. They threatened the Applicant not to do business there. Someone stabbed the Applicant but he still managed to escape. Given his previous experience, the Applicant chose not to report the matter to the police this time.
6. The Applicant and his mother moved to live at his aunt’s place. Later, he himself went to Dhaka where his sister lived. He lived there for four months. The Applicant learned from his mother that the AL people were still looking for him and the same police station still failed to assist. The mother had not reported to other authorities.
7. The Applicant had not heard from his cousin. He guessed his cousin had been killed by the AL people because they had been persecuting their opponents by abduction and killing.
8. The Applicant did not think internal relocation was viable because AL had extensive networks in the country to find and kill him. He left Bangladesh on 15 July 2014. He later came to Hong Kong and sought non-refoulement protection.
9. The Applicant said the AL people were still looking for him in order to kill him. He alleged he was in constant fear which gave him extreme mental pressure.
10. In the ensuing two‑tier screening process here (“the Unified Screening Mechanism”), 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 on 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 (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
11. On 20 December 2017, the Applicant applied for leave for judicial review.
Chronology of events
12. Things happened in this order: –
| 2014-7-15 |
The Applicant left Bangladesh for China. |
| 2014-7-17 |
The Applicant entered Hong Kong from China. He was arrested by the police for illegal remaining. |
| 2014-7-20 |
The Applicant raised a non-refoulement claim. |
| 2016-4-29 |
The Director held a screening interview with the Applicant. |
| 2016-6-20 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) CIDTP risk (BOR3 risk). [“the Director's decision”] |
| 2017-6-27 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-7-4 |
The Applicant provided a letter to the Director for further submission. |
| 2017-8-17 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director's further decision”] |
| 2017-10-3 |
The Applicant appeared before the Board for appeal. |
| 2017-11-17 |
The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board's decision”] |
| 2017-12-20 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
13. 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.
14. In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Board as respondent and the Director as interested party. Thus the Board is the putative respondent; the Director is the putative interested party.
Director of Immigration (the Director)
15. In the Director’s decision dated 20 June 2016, the immigration officer did not make specific findings on the Applicant's credibility. However, he did point out that while the Applicant alleged he assisted BNP in the 2014 General Election, there was country-of-origin information (“COI”) showing BNP had in fact boycotted that election.
16. Nevertheless, even on the strength of the Applicant’s claim the officer found the Applicant’s claimed risk was unlikely to materialise.
17. The officer was aware there was COI saying the Bangladesh police were generally ineffective, corrupt and reluctant to investigate persons affiliated with the ruling party. However, there was also COI showing ongoing reforms in the country. The officer considered reasonable state protection was available to the Applicant. Internal relocation was also viable.
18. The officer did not accept there was real torture risk, persecution risk and BOR3 risk in the Applicant's case that warranted non-refoulement protection. He refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk, and (iii) CIDTP risk (BOR3 risk).
19. Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of BOR2 risk. The Applicant only submitted a letter dated 4 July 2017. In that letter, he relied on the same basis for his claim. He further said the AL people recently made a false report against him in January 2017. They also burned down the house of his family and that of his cousin’s in February 2017.
20. In the Director’s further decision dated 17 August 2017, the officer considered that the Applicant failed to establish a personal and real risk of his rights under the HKBOR being violated (including right to life under BOR2). He refused the Applicant’s non-refoulement claim on the fourth applicable ground: life risk (BOR2 risk).
TCAB/NCPO (the Board)
21. The Adjudicator found the Applicant failed to explain a number of discrepancies in his account. She found the Applicant's claim implausible and lacking in reliable evidence.
22. The Adjudicator was not satisfied that the Applicant faced any risk that warranted non-refoulement protection. She did not accept the Bangladesh police could not offer protection to the Applicant. The Adjudicator found reasonable internal relocation was also viable. She refused the Applicant’s claim with respect to all the four applicable grounds.
Grounds of judicial review
23. In Form 86 and his affirmation, the Applicant had such complaints which can be summarized as follows: –
(a) The Adjudicator was wrong to rule against him.
(b) There was procedural unfairness in the appeal.
(c) The Adjudicator’s decision was unreasonable or irrational due to procedural errors or unfairness.
(d) The Adjudicator failed to meet the greater care and duty owed to a self-represented claimant.
(e) The Adjudicator failed to make appropriate arrangements of serving the appeal bundle on him. The Director only served the bundle on him 8 days before the hearing. There was not sufficient time for him to get language assistance to prepare for the appeal. He was thus confused in the hearing.
(f) The Adjudicator relied on outdated cases and information which was hearsay or not officially recognised.
Court hearing
24. In Form 86, the Applicant requested a hearing. The hearing took place on 17 May 2018. The Applicant was in person. A Bengali interpreter rendered interpretation service in court.
25. The Applicant said he did not know English. A friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were there. He did not elaborate those grounds or give specifics of his complaints.
26. The Applicant confirmed he had submitted all the information and materials to the Director and the Adjudicator for their consideration.
Discussion
27. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
28. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on the claimant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[5]
29. The Applicant complained that he received the appeal bundle including the Director’s skeleton submission only a short time before the appeal hearing.
30. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ [6] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ [7], 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 Director in his letter dated 31 May 2018 confirmed that the Applicant received the appeal bundle on 25 September 2017 (Mon). The hearing before the Adjudicator was scheduled on 3 October 2017 (Tue). The bundle was served 8 calendar days (or 6 working days) prior to the date of the hearing. It was on time.
32. The Applicant complained he did not have enough time to get someone to translate/interpret the documents for him.
33. The Applicant had a friend to help him to prepare Form 86 and the affirmation for the current application. I am sure the Applicant could always find someone to provide him language assistance. The Applicant had exaggerated his language assistance problem.
34. The Director also pointed out in his letter that the appeal bundle consisted mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim.
35. A few days’ time certainly was not a long period. However, the Applicant's case was not difficult and there was no evidence to show the appeal bundle was difficult or voluminous. A few days could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show this court that he really needed more time for preparation. There is no evidence to show he had so complained to the Adjudicator or asked for adjournment during the appeal hearing. There is also no evidence to show the Applicant was confused as to what happened in the appeal before the Adjudicator.
36. The other complaints raised by the Applicant are vague. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find none of the Applicant’s complaints can stand.
37. In my judgement, the Adjudicator had proper basis for her findings, conclusions and decisions which were not Wednesbury unreasonable. She 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’s report showed she was acquainted with the facts of the Applicant's case. She considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator was entitled to render those findings, conclusions and decisions which were all reasonable. She had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
38. The Director is an interested party. I have also reviewed the Director's decision and further decision under ‘rigorous examination and anxious scrutiny’. I am satisfied his findings, conclusions and decisions were not Wednesbury unreasonable. What has been said of the Adjudicator in para. 37 above is also true of the Director. He too had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
39. 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 12th day of June 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
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 12/6/2018
Faruk Md
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 12/6/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4001/16/6/191/B551
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 30/16 & RBCZ 9002506/17 (formerly RBCZ 2434/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
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] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[6] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Bboard pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the laws of Hong Kong.
[7] 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.
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