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HCAL762/2017
[2018] HKCFI 1253
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 762 of 2017
BETWEEN
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Masum Madbar |
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 31 (DOB: 15 September 1986).
2. The Applicant claimed that in 2008 he threw bombs at the people of the Awami League Party (“AL”). The AL people therefore wanted to kill him for revenge.
3. The Applicant said he had joined the Bangladesh Nationalist Party (“BNP”) since the age of 19. He was just an ordinary member but got involved actively in the party’s activities. In the 2008 General Election, he and a few others were instructed to throw bombs at the AL people.
4. AL won the election and became the ruling party in Bangladesh. Some of the bomb-throwers were caught by the AL people. They confessed and named the Applicant as the mastermind of the bomb incident. The AL people thus looked for the Applicant. They could not find him but threatened his family that they would kill him.
5. The AL people had reported to the police that the Applicant was the mastermind of the bomb incident. Thus the police also looked for the Applicant.
6. Although his family was harassed, the Applicant dared not report the matter to any authority. He feared he would be beaten up by the police.
7. The Applicant fled to Dhaka in January 2009. He later left Bangladesh for Nepal and also went to India. Then he returned to Dhaka.
8. The Applicant later left Bangladesh again for China by air on 5 July 2009. He entered Hong Kong illegally from China in late July 2009. He was arrested by the police for illegal remaining. Subsequently, he sought non-refoulement protection.
9. The Applicant claimed that he could not avoid the AL people, who would certainly find and harm him in Bangladesh. He did not think the authorities in Bangladesh would protect him because AL was in power. The police would not help the opposition parties. There were constant conflicts between AL and BNP. People got killed almost every day but the police simply watched on.
10. The Applicant said the AL people knew he had gone to Hong Kong. Yet, they continued to go to his home in Bangladesh to look for him.
11. 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].
12. On 12 October 2017, the Applicant applied for leave for judicial review.
Chronology of events
13. Things happened in this order: –
| 2009-7-5 |
The Applicant left Bangladesh for China. |
| 2009-7-25 |
The Applicant entered Hong Kong from China illegally. |
| 2009-7-26 |
The Applicant was arrested by the police for illegal remaining. |
| 2009-7-28 |
The Applicant raised a torture claim. |
| 2015-2-25 |
The Director interviewed the Applicant. |
| 2015-3-26 |
The Director refused the Applicant's claim with respect to these three applicable grounds: torture risk, persecution risk and CIDTP risk (BOR3 risk). [“the Director's decision”] |
| 2015-4-9 |
The Applicant appealed to the Board. |
| 2016-3-7 |
The Applicant appeared before the Board for appeal. |
| 2017-5-10 |
The Director invited the Applicant to submit additional facts for the consideration of life risk (BOR2 risk). |
| 2017-5-24 |
The Applicant failed to submit additional facts by deadline or thereafter. |
| 2017-5-26 |
The Director refused the Applicant's claim with respect to the fourth applicable ground of life risk (BOR2 risk). [“the Director's further decision”] |
| 2017-8-11 |
The Applicant appeared before the Board again for continued appeal hearing. |
| 2017-9-5 |
The Board refused the Applicant's claim with respect to all the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk). [“the Board’s decision”] |
| 2017-10-12 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
14. In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Adjudicator as proposed respondent and the Director as interested party.
15. The Adjudicator did not act in her personal capacity. She represented the Board. In court, the Applicant agreed to sue the Board in lieu of the Adjudicator. Thus, the Board is the putative respondent; the Director is the putative interested party.
Director of Immigration (the Director)
16. In the Director's decision dated 26 March 2015, the immigration officer did not make specific finding on the Applicant’s credibility. However, even on the strength of the Applicant's allegations, the officer considered the Applicant’s perceived risk of ill-treatment by the AL people was not likely to materialise.
17. The officer did not accept there were substantial grounds for believing that the Applicant would be subjected to torture risk upon his return to Bangladesh. There was no instigation by the state. There were also no substantial grounds for believing the Applicant would face a genuine and substantial BOR3 risk or any real and foreseeable persecution risk.
18. On the other hand, the officer considered reasonable state protection and internal relocation were available to the Applicant.
19. The officer refused the Applicant’s non-refoulement claim with respect to these three applicable grounds: torture risk, persecution risk and CIDTP risk (BOR3 risk).
20. In the Director's further decision dated 26 May 2017, the immigration officer considered the Applicant failed to establish a personal and real risk of right to life under BOR2. The officer refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground of life risk (BOR2 risk).
TCAB/NCPO (the Board)
21. The Applicant appeared before the Adjudicator on 7 March 2016 and 11 August 2017. The Adjudicator did not find him credible. She did not believe he was targeted by the Bangladesh police and the AL people.
22. The Adjudicator found the Applicant had not been inflicted with pain or suffering that amounted to torture; there was no state instigation or state acquiescence. On the other hand, she was satisfied reasonable state protection and internal relocation were available to the Applicant. The Adjudicator concluded there was no real torture risk or any well-founded persecution risk. There was also no personal and real BOR2 risk or substantial and genuine BOR3 risk.
23. On 5 September 2017, the Adjudicator 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 of judicial review
24. In his affirmation, the Applicant listed nine grounds of judicial review under the headings of irrationality, procedural impropriety and unfairness. It would be more comprehensible to narrate the Applicant’s complaints as follows rather than to refer to the nine grounds individually.
25. The Applicant complained the Adjudicator failed to carry out sufficient research and inquiry of country-of-origin information (“COI”); failed to properly consider relevant COI; wrongly considered unofficial, outdated and irrelevant COI; cherry-picked information; failed to evaluate and make a finding as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights; failed to assess state protection and misdirected herself in the extended meaning of state acquiescence; failed to consider facts and inferences favourable to the Applicant; considered irrelevant, incorrect or inaccurate facts; applied the wrong standard of proof; failed to render reasonable decisions.
26. The Applicant also accused the Adjudicator failed to call for psychological and psychiatric reports; failed to arrange an oral hearing and failed to provide legal representation to him.
27. Although the Applicant only named the Director as an interested party, he complained there was no prior screening by the Director on BOR2 risk before the Adjudicator decided on that issue in the appeal.
28. The Applicant alleged he was just given a few days’ time to prepare for the appeal hearing before the Board. He was poor in English and did not have sufficient time to find someone to provide him interpretation/translation assistance to deal with the English documents for the appeal. The Applicant said he was confused as to what happened during the hearing. He said the Adjudicator was wrong to disbelieve him.
Court hearing
29. In Form 86, the Applicant requested a hearing. The hearing took place on 4 May 2018. The Applicant was in person. A Bengali interpreter rendered interpretation service in court.
30. The Applicant said he never had legal representation. He did not know where to ask for assistance. No one told him where to apply for legal representation.
31. The Applicant said he only knew a little English and needed language assistance. A friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. He had nothing to add.
32. The Applicant also confirmed he had submitted all the information and materials to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
33. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
34. 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]
35. The Applicant has filed a barrage of complaints. Most are merely categorical allegations and lack specifics. Some are even against the truth. I shall deal with the false accusations and the more specific complaints first.
36. The Applicant said he never had legal representation during the screening process. He said he did not know how to apply for legal service. However, the Director confirmed in his letter dated 14 May 2018 that the Applicant was represented by the Duty Lawyer Service up to the Director's decision coming out on 26 March 2015.
37. The Applicant could not complain he was not provided with legal representation throughout his claim. 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.[6] The Applicant cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
38. It is also wrong for the Applicant to say there was no prior screening by the Director on BOR2 risk and that there was no oral hearing. There were oral hearings before the Director and the Adjudicator (see Chronology of events in para. 13 above). The Director did not hold further hearing on the issue of BOR2 risk. The Applicant had not submitted additional facts for the Director's consideration on that issue. The Director was thus entitled to continue to assess the Applicant’s claim in relation to BOR2 risk without holding further hearing. The Applicant failed to show this court what more he could have contributed if there was a hearing specifically held for the BOR2 issue in the circumstance. Actually, the Applicant in court confirmed that he had submitted all the information and materials to the Director and the Board for their consideration of his non-refoulement claim. Therefore, he was not deprived of any opportunity to present his case fully.
39. The Applicant complained that he received the appeal bundle including the Director’s skeleton submission only a few days before the appeal hearing.
40. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[7] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[8], 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 appeal hearing.
41. In the present case, the Director confirmed by another letter dated 31 May 2018 that the appeal bundle was served on the Applicant on 29 February 2016 (Mon). The first appeal hearing took place on 7 March 2016 (Mon). The Applicant got the documents 7 calendar days (or 6 working days) prior to the hearing. Thus, the papers were served on the Applicant in time.
42. 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.
43. It is true that many documents in question were in English and the Applicant was not good in English. However, in the current application for leave for judicial review the Applicant had Form 86 and his affirmation well presented in English. It indicates that he could find someone to deal with English documents for him should he so wish. I am sure it was the case at all material times. The Applicant had exaggerated his problem of understanding and dealing with English documents.
44. A few days’ time was certainly 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 be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time for the preparation of the appeal. There is no evidence to show he had so complained to the Adjudicator or asked for adjournment during the appeal hearing.
45. Furthermore, in the present case the appeal before the Adjudicator was in two parts with 17 months in between. If the Applicant really did not have enough time to present his case well during the first appeal hearing on 7 March 2016, he could make up for any deficiency in the next hearing on 11 August 2017. There were 17 months in between. The Applicant would not be short of time to prepare and to find legal or language assistance as he wanted.
46. There is no evidence to support the Applicant’s allegation that he was confused in the appeal hearing. In fact, he said he answered the Adjudicator honestly. That means he knew what was happening in the appeal before the Adjudicator.
47. The Applicant complained the Adjudicator failed to evaluate and make a finding as to whether there were gross, flagrant or mass violations of human rights in Bangladesh. It is actually for the Applicant to prove there were such violations and to show that they were relevant to his case. The Applicant failed to do so. In the circumstance, it is sufficient for the Adjudicator to find on reliable COI that there was reasonable state protection available to the Applicant in Bangladesh.
48. The Applicant also complained the Adjudicator failed to call for psychological and psychiatric reports. Again, the Applicant failed to show there was such a need.
49. The Applicant had laid a barrage of complaints against the Adjudicator. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied that the Adjudicator referred sufficiently and carefully to up-to-date COI relevant to the Applicant’s case. There is no evidence that the Adjudicator had cherry-picked information or suppressed consideration favourable to the Applicant or that she had taken irrelevant, incorrect/inaccurate facts into account. There is no evidence to show the Adjudicator had misdirected herself on any issue including the extended meaning of state acquiescence. There is also no evidence to show she had applied the wrong standard of proof. The Adjudicator’s findings, conclusions and decisions were not Wednesbury unreasonable.
50. There is no substance in any of the Applicant’s complaints against the Adjudicator.
51. In my judgement, the Adjudicator had proper basis for her findings, conclusions and decisions which were all reasonable. She made no errors of law and there was no procedural unfairness. She 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 report of the Adjudicator showed she was acquainted with the facts and the law. She considered the Applicant’s case carefully and applied the law correctly. She was entitled to render those findings, conclusions and decisions which were not Wednesbury unreasonable. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
52. The Director is an interested party. I have also reviewed the Director's decisions under ‘rigorous examination and anxious scrutiny’. What has been said of the Adjudicator in paragraph 51 above is also true of the Director. I am satisfied that the Director's findings, conclusions and decisions were not Wednesbury unreasonable. The Director had also achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
53. The Applicant's complaints are not reasonably arguable. He has no reasonable 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
Masum Madbar
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 1348/15/4/40/B199
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 978/14 & RBCZ 9001689/17 (formerly RBCZ 1934/09)
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] CACV 284/2017 Re: Paswan Shibu Lal, para 21.
[7] 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.
[8] 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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