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HCAL302/2018
[2018] HKCFI 2137
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 302 of 2018
BETWEEN
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Hasan Md Mehedi |
Applicant |
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and
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office
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1st Putative Respondent |
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Director of Immigration
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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 33 (DOB: 8 May 1985).
2. The Applicant claimed that they would be harmed or killed by members of the Awami League (“AL”).
3. The Applicant said he started to support the Bangladesh Nationalist Party (“BNP”) in 2011. He held no official post in the party but worked for some of the party leaders.
4. In 2013, the Applicant and some others were tasked to get people to attend a BNP meeting. The AL people came to cause disruption. The meeting had to be cancelled.
5. A few days later, the Applicant and some BNP supporters were attacked in their party office by seven AL people armed with sticks. Those people also vandalized the furniture in the office. The Applicant was injured but managed to escape.
6. The Applicant got threatening phone calls from AL members regularly in 2013 and 2014. They threatened the Applicant should leave BNP and his family should not stay in the village.
7. In 2014, the Applicant left home to live with a friend for a few months. However, the threats from phone calls continued.
8. In 2015, the Applicant and his family moved to live with his sister in Faridupur. He later heard from his neighbours that the AL people had burned down his house. The Applicant stayed in his sister’s place for seven months.
9. The Applicant claimed his enemies found out he was in Faridupur. They came to look for him but he managed to escape again. He fled to Dhaka where he stayed for four months before leaving the country.
10. The Applicant left Bangladesh for China on 23 December 2015. He sneaked into Hong Kong on 27 December 2015 and surrendered to the Immigration Department two days later. He subsequently lodged a non-refoulement claim.
11. The Applicant said AL was the ruling party so the Bangladesh police would not offer him protection or assistance.
12. The Applicant said internal relocation was not viable. He had tried but his enemies could still locate him. He said AL members were everywhere in the country and they would find him.
13. 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 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 (life risk or BOR2 risk)[4].
14. On 27 February 2018, the Applicant applied for leave for judicial review.
Timeline
15. Things happened in this order: –
| 2015-12-23 |
The Applicant left Bangladesh for China. |
| 2015-12-27 |
The Applicant entered Hong Kong from China illegally. |
| 2015-12-29 |
The Applicant surrendered to the Immigration Department. |
| 2016-10-13 |
The Applicant lodged a non-refoulement claim. |
| 2017-5-26 |
The Director interviewed the Applicant. |
| 2017-6-1 |
The Director refused the applicant’s claim with respect to all 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”] |
| 2018-1-11 |
The Applicant appeared before the Board for appeal. |
| 2018-2-14 |
The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board's decision”] |
| 2018-2-27 |
The Applicant applied for leave for judicial review. |
Respondents
16. 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.
17. 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.
18. In Re Moshsin Ali, the Court of Appeal states that “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] The Applicant cannot seek judicial review against the Director's decision. Therefore, I shall deal with his application in relation to the Board's decision only.
The Director's decision
19. The Director did not accept the Applicant faced any torture risk, persecution risk, BOR3 risk or BOR2 risk. He also found reasonable state protection and internal relocation were available to the Applicant in any event. On 1 June 2017, the Director refused the Applicant’s claim with respect to all the four applicable grounds.
The Board’s decision
20. The Applicant appealed to the Board. He appeared in person before the Adjudicator on 11 January 2018.
21. The Adjudicator found there were unconvincing and inconsistent features in the Applicant’s allegations. He did not accept the Applicant's explanation that the mistakes were made by his friend, who wrote the signification of non-refoulement claim for the Applicant. The Adjudicator found the Applicant had exaggerated his position in BNP and the ill-treatment inflicted on him by his alleged enemies. He also noted the Applicant had not sought non-refoulement protection soon enough. The Adjudicator found the Applicant's allegations were bare decisions.[6]
22. The Adjudicator considered that even on the Applicant's own account of events, the Applicant was only attacked and hurt by his alleged enemies once. The ill-treatment had not reached the threshold of minimum severity. In any event, internal relocation was available to the Applicant.[7]
23. The Adjudicator did not accept there was any real torture risk, persecution risk, BOR2 risk or BOR3 risk in the Applicant’s case. On 14 February 2018, the Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds.[8]
Grounds for judicial review
24. In his affirmation, the Applicant complained the Adjudicator failed to properly consider the issues of state protection and extended state acquiescence; failed to conduct sufficient inquiry and critical analysis of the condition of Bangladesh; failed to provide justification as to why certain country-of-origin information (“COI”) was preferred to rule against him; cherry-picked information; failed to consider violation of human rights in Bangladesh; failed to consider his claim was on account of political opinion.
Court hearing
25. In Form 86, the Applicant requested a hearing. The hearing took place on 29 June 2018. The Applicant was in person. A Bengali interpreter provided service in court.
26. The Applicant confirmed all the grounds of judicial review were in the documents. He complained he did not have enough time to get all the proofs for his claim. He said he had difficulty to get in touch with his family in Bangladesh. Therefore, he could not get all the proofs he wanted. Nonetheless, the Applicant confirmed he had submitted whatever he had to the Director and the Adjudicator for their consideration of his non-refoulement claim.
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’.[9] 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.” [10].
29. The Applicant complained the Adjudicator failed to properly consider the issues of state protection and extended state acquiescence. The Adjudicator had not averred those issues. He need not as he actually disbelieved the Applicant's claim. He found the Applicant faced no risk that warranted non-refoulement protection.
30. By the same token, the Adjudicator did not have to discuss the human rights situation in Bangladesh or to conduct a full enquiry and critical analysis of Bangladesh.
31. The Adjudicator did aver internal relocation by reference to certain COI relating to Bangladesh.[11] It was a factual consideration. The Adjudicator need not state the mental process of his analysis. He had proper basis for his decision, which was not Wednesbury unreasonable. The Applicant failed to show the Adjudicator had relied on unreliable COI or inappropriate materials to arrive at a wrong conclusion. There was also no evidence to show the Adjudicator had cherry-picked information.
32. The Applicant complained the Adjudicator failed to consider properly his claim as one on account of political opinion. The Adjudicator actually disbelieved the Applicant's claim. He did not accept the Applicant had any real risk (including persecution risk) that warranted non-refoulement protection.
33. The Applicant said he could not get all the proofs from Bangladesh since he had difficulty to contact his family. Even if that were true, it was not the fault of the Director or the Adjudicator. The Applicant had been in Hong Kong since December 2015. He had enough time to prepare for interviews by the Director and the Adjudicator. The Applicant admitted he had submitted whatever he had to the Director and the Adjudicator for their consideration of his non-refoulement claim.
34. I have reviewed the Adjudicator's decision under ‘rigorous examination and anxious scrutiny’. I am satisfied 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. 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 and applied the law correctly. He considered the Applicant's case carefully. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant's complaints can stand.
Conclusion
35. 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 October 2018
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(Alan Ngan) |
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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 5/10/2018
Hasan Md Mehedi
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 5/10/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1
stPutative Respondent’s ref. no.:
USM 7383/17/6/79/B857
Director of Immigration
2
ndPutative Respondent’s ref. no.:
QA T/C 870/17 (formerly RBCZ 13453/16)
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] CACV 54/2018, para 45.
[6] The Board's decision, paras 36-47.
[7] Ibid., paras 48-54.
[8] Ibid., paras 55-64.
[9] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[10] CACV 219/2018 [2018] HKCA 570, para 14(1).
[11] The Board's decision, paras 51-54.
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