RAHMAN MOHAMMAD MASUDUR v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL923/2018

[2019] HKCFI 865

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 923 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)

Following:

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 32 (DOB: 14 March 1987).

2.  The Applicant claimed he would be harmed or killed by some members of the Awami League (“AL”) and its student wing the Chhatra League (“CL”). He was a supporter of Islami Chhatra Shibir (“Shibir”), which was the student wing of Jamaat-e-Islami (“Jamaat”). The Applicant refused to join AL/CL. AL dominated the Bangladesh government and suppressed the activities of Jamaat/Shibir.

3.  The Applicant said he became a member of Shibir in 2009. He held no particular post but took part in Shibir’s meetings and rallies. He also helped to persuade other students to join Shibir.

4.  Three CL members (Niaz, Kobir and Hazim) asked the Applicant to leave Shibir to join CL. The Applicant refused. The three threatened to kill the Applicant.

5.  In June 2012, the Applicant and some Jamaat members were attacked by the AL/CL people.

6.  The Applicant moved to Dhaka later but his enemies learnt about that.

7.  In early 2013, the Applicant heard the police were after him for criminal damage and breach of peace. He also learnt some Jamaat/Shibir members had been arrested by the police.

8.  In Dhaka, the Applicant was harassed by some CL people. They blackmailed him and asked him to join CL. The Applicant refused their demand. He was attacked and injured.

9.  The Applicant complained to the police but he was ignored.

10.  The Applicant decided to leave Bangladesh. He left for China on 12 November 2013 and came to Hong Kong illegally on 15 November 2013. He raised a non-refoulement claim later.

11.  The Applicant said the Bangladesh authorities would not help him because they were under the control of AL/CL.

12.  The Applicant said internal relocation was not viable since he had no relatives or friends to assist him and AL/CL could locate him.

13.  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 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 (BOR3 risk)[3]  and (iv) risk of violation of the right to life (BOR2 risk)[4].

14.  On 24 May 2018, the Applicant applied for leave for judicial review.

Timeline

15.  Things happened in this order: –

2013-11-12	The Applicant left Bangladesh for China.
2013-11-15	The Applicant entered Hong Kong illegally from China.
2013-11-16	The Applicant was arrested by the police.
2013-11-18	The Applicant raised a non-refoulement claim.
2017-11-17	The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) BOR2 risk and (iv) BOR3 risk. [“the Director's decision”]
2018-4-30	The Applicant appeared before the Board for appeal.
2018-5-10	The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board's decision”]
2018-5-24	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 Director and the Adjudicator as respondents. The Director is the first putative respondent; the Adjudicator is the second putative respondent.

18.  In Re Moshsin Ali, the Court of Appeal ruled “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] Therefore, I shall deal with the current application in relation to the Board's decision only.

The Director’s decision

19.  In his decision dated 17 November 2017, the Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event.

The Board's decision

20.  The Applicant appealed to the Board. The Adjudicator interviewed him on 30 April 2018.  However, the Applicant merely answered a few questions and then remained silent.

21.  The Adjudicator had many concerns of the Applicant's claim which remained unanswered. He found there was no sufficient evidence from the Applicant to establish his non-refoulement claim.

22.  Even on the Applicant's own account of events, the Adjudicator found the   enemies did not want to seriously harm or kill the Applicant.

23.  The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 10 May 2018, he refused the Applicant’s appeal with respect to all the four applicable grounds.

Grounds of judicial review

24.  In Enclosure 2 of Form 86, the Applicant complained against the Director and the Adjudicator. As said in para 18 above, I would deal with the current application in relation to the Adjudicator's decision only.

25.  The Applicant said the Adjudicator failed to make sufficient inquiry. He also complained the Adjudicator failed to note that he had no or limited option at his disposal to bring evidence before the Board because he was detained in the Immigration Detention Centre. He accused the Adjudicator failed to give him chance to arrange relevant evidence.

Court hearing

26.  The hearing took place on 7 September 2018. The Applicant was in person. A Bengali interpreter provided service in court.

27.  The Applicant said he was imprisoned for a criminal offence from June 2017 to February 2018. Then he was further detained by the Immigration Department till 21 June 2018. He said he got the Board's decision in the Castle Peals Immigration Centre. The Applicant said he did not know how to approach the Legal Aid Department. He applied for legal aid only on 23 August 2018.

28.  The Board's decision was dated 10 May 2018. The Applicant was quick to take out the current application for leave for judicial review on 24 May 2018. However, he only applied for legal aid three months later on 23 August 2018. He said he had no idea that he could apply for legal aid and he did not know how. Such excuses could not justify the long delay, which was apparently intentional. I therefore uplifted the 42-day stay normally required under section 15(4) of the Legal Aid Ordinance, Cap. 91 of the Laws of Hong Kong and proceeded with the hearing.

29.  The Applicant said a friend helped him to prepare the documents for the current application. He confirmed all the grounds of judicial review were there. He had nothing to add.

30.  The Applicant also confirmed he had submitted all he had to the Director and the Adjudicator for their consideration of his non-refoulement claim. However, he claimed he would have wanted to produce two more documents to prove his claim. One was a certificate of his party membership; the other was a police warrant relating to a case against him in Bangladesh. He could not do so because he was in custody then. He said he had mentioned them to the Director but he did not tell the Adjudicator.

31.  The Applicant, however, admitted to this court that he did not have the said documents in Hong Kong even now.

Discussion

32.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

33.  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] 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.” [7]

34.  The Applicant was in custody from June 2016 till June 2018. Even so, he was not inhibited from filing his appeal to the Board and the current application for leave for judicial review.

35.  The Director interviewed the Applicant on 15 November 2017 and the Adjudicator heard him on appeal on 30 April 2018. The Applicant complained that due to his custody he could not produce certain documents to the Director and the Adjudicator. Yet, he never had those documents with him in Hong Kong.

36.  The Applicant had been in Hong Kong since November 2013. He could not explain why he failed to get hold of the alleged documents during the time before he was remanded in custody or after he was released. It is doubtful whether those documents existed at all.

37.  One must also bear in mind that, despite he was in custody, the Applicant was represented by the Duty Lawyer Service up to the Director's decision dated 17 November 2017.

38.  I do not accept the Applicant had proper grounds to complain that he had been prejudiced by his custody or that he had been deprived of any chance to fully prove his claim before the Director or the Adjudicator.

39.  The Applicant elected to remain silent after answering a few questions before the Adjudicator. He cannot now complain the Adjudicator failed to make thorough inquiry or that he was not given sufficient opportunities to prove his case. The Adjudicator had made due inquiry and had been fair to the Applicant.

40.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. 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. He considered the Applicant’s case carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

41.  The Applicant's complaints are not reasonably arguable. He has no realistic prospect of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.

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

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] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.

[7] CACV 219/2018 [2018] HKCA 570, para 14(1).