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HCAL275/2018
[2018] HKCFI 1846
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 275 of 2018
BETWEEN
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Younus
@ Mohammand Razib
@Razib
@Yunus |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
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 43 (DOB: 15 October 1974).
2. The Applicant claimed he would be killed by his neighbour Abdur Rob (“Abdur”) because of a land dispute.
3. The Applicant said he had known Abdur for many years. Abdul appeared to be a member of the Bangladesh Nationalist Party (“BNP”).
4. The Applicant's family had a piece of land. In 2002, Abdur claimed he had right to part of the land. He presented a land deed and made complaint to the police. The elders in the village, however, adjudged the land belonged to the Applicant’s family.
5. Abdur would not listen to the elders. In early 2003, he came with many family members to occupy the land by force.
6. The Applicant and his father reported the matter to the police but the police ignored their complaint.
7. There were altercations between the two sides. The Applicant's side had been attacked by Abdur and his associates three times. The Applicant was injured twice. Abdur threatened to kill the Applicant and his family. He also threatened that the Applicant should not seek police assistance.
8. The Applicant believed the police would not do anything against Abdur because Abdur was a powerful BNP member. The Applicant did not report the matter to the police even though his nephew Salam was killed in the third attack in January 2003.
9. After the third attack, the Applicant moved to live in another place called Dholaipar. In 2004, he moved to Kadamtoli and stayed there for several months before moving back to Dholaipar. Abdur had come with his men to look for the Applicant in those two places.
10. The Applicant finally left Bangladesh for China sometime in 2004. He later entered Hong Kong from China as visitor using the name of Younus. He had stayed here for 2 odd months before being arrested on 4 November 2004 for overstaying. On 4 December 2004, he was repatriated to Bangladesh.
11. Back in Bangladesh, the Applicant stayed in different places to dodge Abdur. On 25 February 2005, he left Bangladesh for Hong Kong using the name of Razib. He did not enter Hong Kong but went to China by ferry.
12. On 3 March 2005, the Applicant entered Hong Kong from China. Two days later, he left Hong Kong for China. A few days later, he entered Hong Kong again from China. Then he overstayed here until he was arrested three odd years later in September 2008. He subsequently raised a torture claim.[1]
13. The Director refused the Applicant’s torture claim in March 2013 and the Board refused the Applicant's appeal on torture claim in June 2013.
14. The Applicant said Abdur had been looking for him in Bangladesh and threatened to kill him because of the land dispute. The Applicant claimed Abdur injured his wife in Bangladesh badly in late 2015.
15. The Applicant said that even though the Awami League (“AL”) was in power now, BNP was still influential in Bangladesh. One of Abdur’s uncles was in fact an AL minister. The Applicant said the Bangladesh police would only help influential people and those having connections with them.
16. 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 (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to the remaining applicable grounds: (i) risk of persecution,[2] (ii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3] and (iii) risk of violation of the right to life (BOR2 risk)[4].
17. On 22 February 2018, the Applicant applied for leave for judicial review.
Chronology of events
18. Things happened in this order: –
| 2004 |
The Applicant left Bangladesh for China by air. He later entered Hong Kong from China as visitor under the name of Younus. |
| 2004-11-4 |
The Applicant was arrested by the police for overstaying. |
| 2004-12-4 |
The Applicant was repatriated to Bangladesh. |
| 2005-2-25 |
The Applicant came to Hong Kong under the name of Razib. He did not enter Hong Kong but went straight to China. |
| 2005-3-3 |
The Applicant entered Hong Kong from China. |
| 2505-3-5 |
The Applicant left Hong Kong for China. A few days later, he came back to Hong Kong. He overstayed after the expiry of his visa. |
| 2008-9-4 |
The Applicant was arrested by the police. |
| 2008-10-7 |
The Applicant lodged a torture claim. |
| 2012-11-28 |
The Director interviewed the Applicant. |
| 2013-3-15 |
The Director refused the Applicant’s torture claim. |
| 2013-3-28 |
The Applicant appealed to the Board. |
| 2013-5-31 |
The Applicant lodged a non-refoulement claim. |
| 2013-6-3 |
The Board refused the Applicant's appeal on torture claim. |
| 2016-5-18 |
The Director interviewed the Applicant again. |
| 2016-8-24 |
The Director refused the Applicant’s claim with respect to these two applicable grounds: (i) persecution risk and (ii) CIDTP risk (BOR3 risk). [“the Director's decision”] |
| 2017-7-7 |
The Director invited the Applicant to submit additional facts for the consideration of life risk (BOR2 risk). |
| 2017-7-21 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-7-25 |
The Director refused the Applicant’s claim with respect to life risk (BOR2 risk). [“the Director's further decision”] |
| 2017-11-6 |
The Applicant appeared before the Board for appeal. |
| 2018-2-15 |
The Adjudicator refused the Applicant’s claim with respect to all the applicable grounds. [“the Board's decision”] |
| 2018-2-22 |
The Applicant applied for leave for judicial review. |
Respondents
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), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.
21. An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.[5]
22. In the present case, the Director's decision dated 24 August 2016 and further decision dated 25 July 2017 were more than three months old by the time the Applicant filed his current application on 22 February 2018. However, the Applicant should not seek judicial review against the two Director's decisions before the Board rendered its appeal decision on 15 February 2018. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the two Director's decisions albeit late on 22 February 2018; the application against the Board's decision was made in time.
Director of Immigration (the Director)
23. In the Director’s decision dated 24 August 2016, the immigration officer did not make specific findings on the Applicant’s credibility. However, even on the Applicant’s own account of events the officer found the level of risk of harm against the Applicant by his alleged enemies was low. The Applicant had not been inflicted with ill-treatment to a minimum level of severity. There was no evidence that the state was involved.
24. The officer was aware there were reports of police corruption in Bangladesh. However, there was also objective country-of-origin information (“COI”) showing the Bangladesh government had taken practical steps to monitor the police and to improve their effectiveness. The officer considered reasonable state protection was available to the Applicant. Internal relocation was also viable.
25. The officer did not accept the Applicant faced any real persecution risk or CIDTP risk (BOR3 risk). He refused the Applicant’s claim with respect to those two applicable grounds.
26. Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of the last applicable ground, i.e. life risk (BOR2 risk). However, the Applicant did not respond by the deadline or thereafter.
27. In the Director’s further decision dated 25 July 2017, the officer considered the Applicant failed to establish a personal and real risk of his rights under HKBOR being violated (including the right to life under BOR2). He refused the Applicant’s claim with respect to the last applicable ground: life risk (BOR2 risk).
TCAB/NCPO (the Board)
28. The Adjudicator found the Applicant being inconsistent, vague and evasive. He noted that the Applicant did not claim non-refoulement protection when he first came to Hong Kong in 2004 and when he came again in March 2005. The Applicant only lodged his torture claim when he was arrested three odd years later in September 2008.
29. The Adjudicator did not find the Applicant’s claim credible. He did not accept the Applicant faced any real risk that warranted non-refoulement protection. He refused the Applicant’s claim with respect to all the applicable grounds.
Grounds for judicial review
30. In his affirmation, the Applicant complained the Director and the Adjudicator failed to clarify the issues during oral hearing; failed to attain high standards of fairness; failed to properly consider state protection and state acquiescence; failed to consider his claim with respect to BOR3 risk; failed to conduct sufficient enquiry and critical analysis of COI; failed to explain why they preferred certain COI to rule against him; cherry-picked information; failed to consider his psychological harm; took into account irrelevant consideration.
31. The Applicant said the Adjudicator had not probed enough into his case. He said it was not sufficient for the Adjudicator to merely highlight certain “inconsistencies and exaggerations” in paras 24-38 of his decision.
32. The Applicant further complained the Director failed to assess the additional information he had submitted [referring to pages 9-11 of the Director's decision dated 24 August 2016 when in fact it should be pages 9-10 only].
Court hearing
33. In Form 86, the Applicant requested a hearing. The hearing took place on 11 June 2018. The Applicant was in person. A Bengali interpreter provided interpretation service in court.
34. The Applicant said he knew no English. A friend helped him to prepare Form 86 and the affirmation. The Applicant confirmed all the grounds of judicial review were in the affirmation. He could not elaborate his complaints but just said he could not go home due to danger.
Discussion
35. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
36. 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]
37. The Applicant accused the Director and the Adjudicator failed to consider his claim with respect to BOR3 risk. That was not true. Both the Director and the Adjudicator had considered the Applicant’s claim with respect to BOR3 risk.
38. The Applicant also complained the Director failed to assess the additional information he had submitted in his Supplementary Claim Form (“SCF”) dated 23 February 2016.
39. The Director had not ignored the additional information. The immigration officer on behalf of the Director stated he had taken, among other things, the Applicant's SCF into consideration.[7] He mentioned the information in details.[8] The officer only need to take the information into consideration of the Applicant's claim as a whole. He did not have to analyse the information sentence by sentence or paragraph by paragraph.
40. The Applicant complained the Adjudicator had not probed enough into his case. He said it was not sufficient for the Adjudicator to merely highlight certain “inconsistencies and exaggerations” in paras 24-38 of his decision.
41. In my judgment, the Adjudicator had expressed himself clearly in those paragraphs of his decision. He had proper basis for his findings, which were not Wednesbury unreasonable.
42. There are other complaints by the Applicant against the Director and the Adjudicator. I have reviewed the Director's decision plus further decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Director or the Adjudicator, who had each 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 reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and they applied the law correctly. The Director and the Adjudicator considered the Applicant's case carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable.
43. The Applicant's torture claim had been previously refused by the Director and the Board in 2013. There being no change in the Applicant's claim, the Director and the Board need not and should not consider the torture risk issue again.
44. The Director rightly considered the Applicant's non-refoulement claim with respect to the other three applicable grounds only: persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk). The Director had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
45. The Adjudicator was so aware and took the same course.[9] He, however, mistakenly typed “(c)” in the third line of para. 14 when he must be referring to “(d)” in the context, i.e. risk of torture. He also mistakenly included para. 43 in his report which said there was no real torture risk. That was unnecessary because ‘torture risk’ was not and should not be under consideration by the Director and the Adjudicator. The torture risk issue was well concluded in 2013.
46. The said minor mistakes did not affect the integrity of the Adjudicator’s decision. The Adjudicator still had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
47. The Applicant's complaints are not reasonably arguable either against the Director or the Board. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.
Dated 13th day of August 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 13/8/2018
Younus @ Mohammand Razib
@Razib @Yunus
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 13/8/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 4663/16/9/42/B626
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 254/16 & RBCZ 9002661/17 (formerly RBCZ 2001266/14)
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] Order 53, rule 4 of the Rules of the High Court.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] The Director's decision dated 24 August 2016, para 8.
[8] Ibid., paras 9.49-9.50.
[9] The Adjudicator’s Report, paras 2 and 14.
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