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HCAL1112/2017
[2018] HKCFI 1178
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1112 of 2017
BETWEEN
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Litoun Mounsy
@ Akmal Ali
@ Shamen Hosain |
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: 9 September 1969).
2. The Applicant claimed that he would be harmed by members of the Awami League (“AL”) including Moslem Uddin (“MU”) and his associates. They requested the Applicant to pay protection fees and to desert his political party Bangladesh Jamat-e-Islami Party (“JI”) to join AL.
3. The Applicant said he had joined JI since 1995. He later held the position of Joint-Secretary of the Kamalla Union branch. He was mainly responsible for organising meetings and rallies.
4. The Applicant said JI was a pro-Islamic political party. AL people would persecute and extort JI members. Between 2001 and 2009, the Applicant’s business had been extorted of protection money once every two or three months by the AL people including MU, who was a union level branch general-secretary of AL. MU also threatened to kill the Applicant unless the latter would leave JI to join AL.
5. In 2009, the Applicant was repeatedly threatened by the AL people to vote for AL.
6. In January 2011, some AL people came to cause damage to the Applicant’s shop. That was repeated in March 2012. MU even threatened the Applicant with a gun.
7. In mid-2012, while in Dhaka the Applicant saw the police round up people wearing beard and traditional Islamic clothes like him. The Applicant managed to escape. He then concealed his JI identity.
8. In December 2012, a group of 40 - 50 armed AL people came to disrupt a JI meeting organised by the Applicant. He was beaten and injured. There was serious fighting between JI and AL. Many JL members were hurt. The Applicant managed to escape.
9. The Applicant dared not report the matter to the police for fear they would catch him and make false allegation against him. A JI member did report the matter but the police ignored him.
10. The AL people made false complaints to the police, accusing the Applicant and other JI members of attempted murders, assaults and unlawful gathering. The Applicant learnt that the Magistrate’s Court had issued a warrant against him for those false complaints.
11. For the next few months, the Applicant relocated himself to one place after another in Bangladesh. He heard the AL people were looking for him everywhere in order to kill him.
12. In May 2013, the Appellant went back to Dhaka to join a rally to protest against AL. The security forces shot at the crowd. The Applicant managed to escape unhurt but thousands were shot dead.
13. The Applicant went back into hiding. His father told him the AL people knew where he was. The Applicant then decided to leave Bangladesh for China on 30 May 2013. He later entered Hong Kong from China illegally and sought non-refoulement.
14. The Applicant claimed he suffered intense fear, anxiety and mental pressure. He said the AL people including MU were still looking for him in order to kill him. They continued to threaten his family in Bangladesh.
15. The Applicant said AL was in control in Bangladesh so he would not have state protection or fair trial. He could not relocate himself to other parts of the country as the AL people could find him.
16. In the ensuing two-tier Unified Screening Mechanism here, 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 (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
17. On 20 December 2017, the Applicant applied for leave for judicial review.
Chronology of events
18. Things happened in this order: –
| 2002-3-5 |
The Applicant arrived in Hong Kong as a visitor under the identity of Akmal Ali (ID 1). He travelled many times between Hong Kong and China during the period of March 2002 and March 2003. |
| 2003-3-12 |
The Applicant was arrested by the police in Hong Kong for illegal working. |
| 2003-4-7 |
The Applicant was repatriated to Bangladesh. |
| 2005-5-25 |
The Applicant came to Hong Kong using the identity of Shamen Hosain (ID 2). He travelled between Hong Kong and China many times during the period of June 2005 and January 2006. |
| 2006-1-30 |
The Applicant came to Hong Kong as a visitor. He was allowed to stay until 13 February 2006. |
| 2006-2-8 |
The Applicant was arrested by the police in Hong Kong again for illegal working. |
| 2006-3-24 |
The Applicant was repatriated to Bangladesh for the second time. |
2006-11-10 to
2007-6-18 |
The Applicant used a different identity of Litoun Mounsy (ID 3) to travel between Hong Kong and China many times. During this period, he had also been to Nepal twice and returned to Bangladesh three times. |
| 2013-5-30 |
The Applicant used ID 3 to leave Bangladesh for China. |
| 2013-7-8 |
The Applicant illegally entered Hong Kong from China by boat. |
| 2013-7-31 |
The Applicant was arrested by the police. |
| 2013-9-19 |
The Applicant raised a non-refoulement claim. |
| 2016-7-21 |
The Director held a screening interview with the Applicant. |
| 2017-6-23 |
The Director refused the Applicant’s claim with respect to the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (BOR3 risk) and (iv) life risk (BOR2 risk). [“the Director's decision”] |
| 2017-12-6 |
The Applicant appeared before the Board for appeal. |
| 2017-12-8 |
The Adjudicator refused Applicant’s claim with respect to the four applicable grounds. [“the Board’s decision”] |
| 2017-12-20 |
The Applicant applied for leave for judicial review. |
Respondent/Interested Party
19. 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.
20. In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Board as respondent and Director as interested party. Hence, the Board is the putative respondent; the Director is the putative interested party.
Director of Immigration (the Director)
21. In the Director's decision dated 23 June 2017, the officer found the Applicant was unreasonable in claiming that he faced imminent threats and yet did not seek non-refoulement protection during his earlier stays in Hong Kong. Instead, he had returned to Bangladesh again and again during those periods.
22. Even on the strength of the Applicant's claim, the officer considered the level of risk of harm the Applicant would face upon return to Bangladesh was low. The officer noted the Applicant had not been inflicted with ill-treatment to a minimum level of severity.
23. The officer did not accept the Applicant was a target of the Bangladesh government. He found no substantial grounds to believe the Applicant’s feared situation was instigated by or with the consent or acquiescence (active or passive) of the Bangladesh government or officials.
24. The officer accepted there were reports of corruption, political violence and abuse of power concerning the Bangladesh security forces; the Pakistan authorities at times failed to maintain effective control over those forces; JL members did face pressure. However, there was also objective country-of-origin information (“COI”) to show reforms had been ongoing in the country. The officer did not accept reasonable state protection and justice were not available to the Applicant. He also considered reasonable internal relocation was viable in the Applicant's case.
25. The officer did not accept the Applicant had any real risk that warranted non-refoulement protection. He refused the Applicant’s non-refoulement claim with respect to the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk).
TCAB/NCPO (the Board)
26. In his decision dated 8 December 2017, the Adjudicator set out the facts and the law clearly.
27. The Adjudicator considered there were many inconsistent and implausible features in the Applicant’s claim. He found the Applicant incredible.
28. The Adjudicator was not satisfied that the Applicant faced any real risk that warranted non-refoulement protection. He refused the Applicant's claim with respect to the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk)).
Grounds for judicial review
29. In Form 86, the Applicant complained the Adjudicator wrongly refused his appeal; rendered unreasonable or irrational decision; acted in a procedurally unfair manner; failed to consider he was a self-represented claimant.
30. The Applicant further accused the Adjudicator of relying on outdated cases and information that was not officially recognised or simply hearsay.
31. Although the Applicant only named the Director as an interested party in the current application, he did complain the Director served the appeal papers only 8 days before the Board heard his appeal. He said he had no sufficient time to obtain language assistance to prepare well for the appeal. The Applicant said he was thus confused in the appeal hearing. He also complained the Adjudicator failed to make appropriate arrangements in relation to the service of the appeal bundle.
Court hearing
32. In Form 86, the Applicant requested a hearing. The hearing took place on 23 May 2017. A Bengali interpreter provided interpretation service in court.
33. The Applicant asked this court to adjourn the hearing until the conclusion of his legal aid refusal appeal. He said that appeal was to be heard on 8 June 2017. He wished he could be provided with legal representation upon success in that appeal.
34. Although the Applicant’s legal aid refusal appeal is to be heard soon, there is no guarantee that he would succeed and be guaranteed of legal representation in the foreseeable future. There is no reason to adjourn the current proceeding for something uncertain. I thus refuse the Applicant’s asking for adjournment.
35. The Applicant confirmed he had submitted everything to the Director and the Adjudicator. However, he wanted to submit some documents to this court. He said those documents were related to the merits of his non-refoulement claim. They were about some recent happenings to his family in Bangladesh in April 2018.
36. The documents which the Applicant wanted to submit now were said to be about happenings after the proceedings in front of the Director and the Adjudicator had well concluded. Obviously, they could not be relevant to the current judicial review proceeding. I would not accept those documents.
37. In court, the Applicant was asked to elaborate his grounds of judicial review or to give specifics of his complaints against the Adjudicator or the Director. He, however, had nothing to add.
Discussion
38. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
39. 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’.[5]
40. Despite being a university graduate in Bangladesh, the Applicant said he did not know much English. Nevertheless, he was able to get someone to prepare Form 86 and the affirmation for his current application for judicial review. I am sure the Applicant could get language assistance at all material times. I find he had much exaggerated his language problem.
41. The Applicant complained he only had about 8 days to prepare for the appeal before the Board. Even if his allegation was true, there is no evidence to show that was not enough for his preparing for the appeal before the Board. There is no evidence to show the Applicant had expressed such dissatisfaction to the Adjudicator or for that reason applied for adjournment in the Board hearing. Paragraph 16 the Adjudicator’s report reveals he asked for time but only for the purpose of submitting documents. The Adjudicator made enquiry and learnt that those documents were allegedly issued in 2013. He was of the view that the Applicant had had more than enough time to get hold of the alleged documents if he would like to rely on them. The Adjudicator refused to adjourn the hearing.
42. The Adjudicator was entitled to refuse that adjournment request, which had nothing to do with the Applicant's present complaint that he was only given the appeal bundle several days before the hearing.
43. The Applicant said he was confused during the appeal hearing. However, the Adjudicator’s report shows the Applicant was fully aware of what was going on. He responded to the Adjudicator and expressed his own wish.[6] I am sure the Applicant had prepared well for the appeal and he was not confused at all during that appeal hearing.
44. The other complaints raised by the Applicant are vague. He could not be specific in court. Nevertheless, I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Adjudicator was alive to the issues of the Applicant's claim. He had engaged in joint endeavour with the Applicant in the screening inquiry. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts and the law. He considered the Applicant's case carefully and applied the law correctly. He gave balanced consideration to relevant facts and COI. The Adjudicator was entitled to render those findings, conclusions and decisions which were not Wednesbury unreasonable. He had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
45. The Director is an interested party in the current application. I have also reviewed his findings, conclusions and decisions under ‘rigorous examination and anxious scrutiny’. I am satisfied they were not Wednesbury unreasonable. The Director made no errors of law and there was no procedural unfairness. What has been said of the Adjudicator in paragraph 44 above is also true of the Director. The Director had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
46. 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 5th 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 5/6/2018
Litoun Mounsy @Akmal Ali
@Shamen Hosain
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 5/6/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.: USM7675/17/7/56/B885
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1965/15 (formerly RBCZ 1105/14)
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 Adjudicator’s report, paras 10, 15 & 16.
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