MOROL RANA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL778/2017

[2018] HKCFI 1063

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 778 of 2017

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of the documents only;
	consideration of the documents and oral submissions by the Applicant in open court;

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: 10 May 1987). 

2.  The Applicant arrived in Hong Kong on 23 June 2014. He claimed that would be ill-treated or killed by the people of the Bangladesh Awami League  (“AL”) and the Bangladesh Chatra League (“BCL”) including a person called Shumon Hawlader (“Shumon”). BCL was the student wing of AL. 

3.  The Applicant also feared he would be arrested by the police if he was refouled to Bangladesh because a BCL member called Labu had falsely accused him of assault.

4.  The Applicant was impressed by the ideology of the Bangladesh Nationalist Party (“BNP”). He had joined its student wing called Jatiyatabadi Chatra Dal (“JCD”). He was an active member. In 2013, he became the president of JCD in the Munshiganj District.

5.  Shumon was the president of BCL in the same district. He was influential and had extensive network in Bangladesh. He was well acquainted with the senior members of AL.

6.  In mid-June 2013, JCD held a meeting. Some armed BCL people including Shumon came. They attacked the Applicant until he fainted. Many JCD members were also severely injured on that occasion.

7.  The Applicant did not report the matter to the police because the police were controlled by the ruling party AL. He believed the police would not help JCD.

8.  Several days later, some JCD members attacked a BCL member called Labu for revenge. They injured him badly. The Applicant learnt about this. In fear of retaliation by his enemies, he fled to another place. He came to know that Labu had falsely reported to the police that he was involved in the attack.

9.  Labu and his company went to ask the Applicant’s family of his whereabouts. The Applicant's father would not tell them. He was assaulted. Shumon announced he would kill the Applicant. The BCL people also damaged things in the Applicant’s house before leaving.

10.  The Applicant later learned that his father disappeared 5 - 6 days after the above incident. It was suspected the AL people had abducted the Applicant’s father. The Applicant’s mother reported the matter to the police but she was ignored. The mother asked the Applicant not to come home for fear of the BCL people.

11.  The Applicant moved to live in another place. He knew from his mother that the BCL people kept on looking for him.

12.  In December 2013, the local BNP chairman Dolon asked the Applicant to come back to Munshiganj to lead a JCD protest against the election. He promised it would be safe for the Applicant. The Applicant then returned to Munshiganj. He participated actively in the protest. Nevertheless, AL won the election in January 2014.

13.  Shumon and the BCL people came to know that the Applicant had returned to Munshiganj. They armed themselves and looked for the Applicant at Dolon’s house. The Applicant hid himself. Shumon threatened to kill the Applicant. Such harassment occurred several times. The Applicant did not report the matter to the police because he feared he would be arrested for the 2013 assault report.

14.  The Applicant was mentally tormented by the death threats. He decided to leave Bangladesh. He flied out of Dhaka for China on 7 June 2014. He went to Shenzhen and stayed there for two weeks before sneaking into Hong Kong by boat in late June 2014. The next day, he was arrested by the police for illegal remaining. He raised a non-refoulement claim.

15.  In Hong Kong, the Applicant learned from his mother that Shumon and his party were still looking for him and threatened to kill him. The Applicant's father was still missing although the police finally registered the report made by the Applicant's mother.

16.  The Applicant did not think internal relocation was viable. He said the AL people had nationwide connection. They could track him down anywhere in Bangladesh. The Applicant also feared the police would arrest him and would not treat him fairly because he supported BNP. He said the police were for AL and BCL.

17.  In the 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 (BOR2 risk)[4].

18.  On 17 October 2017, the Applicant applied for leave for judicial review.

Chronology of events

19.  Things happened in this order: –

2014-6-7	The Applicant left Dhaka for China.
2014-6-22	The Applicant illegally entered Hong Kong from China by boat.
2014-6-23	The Applicant was arrested by the police for illegal remaining.
2014-6-27	The Applicant raised a non-refoulement claim
2016-6-7	The Director held a screening interview with the Applicant.
2016-8-18	The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) CIDTP risk (or BOR3 risk). [“the Director’s decision”]
2017-6-21	The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk.
2017-7-5	The Applicant failed to submit additional facts by deadline or thereafter.
2017-7-10	The Director refused the applicant’s claim with respect to the fourth applicable ground: life risk (or BOR2 risk). [“the Director’s further decision”]
2017-9-19	The Applicant appeared before the Board for appeal.
2017-9-29	The Board refused Applicant’s claim with respect to all the four applicable grounds. [“the Board’s decision”]
2017-10-17	The Applicant applied for leave for judicial review.

Respondent/Interested Party

20.  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 case on a rehearing basis.

21.  In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Adjudicator as respondent and the Director as interested party. 

22.  The Adjudicator did not act in his personal capacity. He represented the Board. In court, the Applicant agreed to change to sue the Board as respondent. Hence in the current application, the Board is the putative respondent and the Director is the putative interested party.

Director of Immigration (the Director)

23.  In the Director’s decision dated 18 August 2016, the immigration officer considered that the level of risk of harm from the AL/BCL people was low. The officer did not accept the ill-treatment inflicted upon the Applicant by his alleged enemies had attained a minimum level of severity. He also did not accept the Applicant would be deprived of fair treatment by the police or a fair trial in Bangladesh. Having considered the country-of-origin information (“COI”) relevant to Bangladesh, the officer was satisfied that reasonable state protection and internal relocation were available to the Applicant. The officer did not accept the Applicant faced a genuine and substantial BOR3 risk. Nor was there any well-founded persecution risk. He found no substantial grounds to believe the Applicant’s claimed risk was instigated by the state. There was also no state acquiescence. The officer did not accept there was any torture risk in the Applicant’s case.

24.  The officer refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk, and (iii) CIDTP risk (or BOR3 risk).

25.  Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of the fourth applicable ground, i.e. life risk (or BOR2 risk). However, the Applicant did not respond by the deadline of 5 July 2017 or thereafter.

26.  In the Director’s further decision dated 10 July 2017, the immigration officer considered that the Applicant failed to establish a personal and real risk of his rights under the HKBOR being violated (including right to life under BOR2).

27.  The officer refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground: life risk (or BOR2 risk).

TCAB/NCPO (the Board)

28.  The Applicant appeared in person before the Adjudicator on 19 September 2017.

29.  In his report, the Adjudicator set out the facts and the law clearly. He meticulously pointed out some serious inconsistencies in the Applicant’s versions. He found the Applicant incredible.

30.  The Adjudicator found the Applicant failed to prove there was state instigation or state acquiescence in his case. On the other hand, internal relocation was available to the Applicant in Bangladesh. The Adjudicator was not satisfied the Applicant faced any real and personal torture risk. He also found there were no substantial grounds for believing the Applicant would face a real BOR2 risk or real BOR3 risk or well-founded persecution risk.

31.  On 29 September 2017, the Adjudicator dismissed the Applicant’s appeal with respect to the four applicable grounds.

Grounds for judicial review

32.  In support of his application, the Applicant submitted an affirmation dated 17 October 2017 [Folio 2]. In his affirmation, the Applicant listed nine grounds under the headings of irrationality, procedural impropriety/unfairness and procedural impropriety.

33.  It would be more comprehensible to narrate the Applicant’s complaints as follows rather than to refer to the nine grounds individually.

34.  The Applicant complained the Adjudicator failed to carry out sufficient research and inquiry into the conditions of Bangladesh; failed to have regard to relevant and up-to-date COI information; failed to place weight on relevant COI; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights; failed to analyse and assess whether there was state protection in Bangladesh; placed weight on irrelevant considerations and incorrect/inaccurate facts; failed to place weight on facts and inferences favourable to the Applicant; failed to call for psychological and psychiatric reports; failed to provide sufficient legal assistance and failed to arrange an oral hearing.

35.  The Applicant also complained that the Adjudicator applied the wrong standard of proof; misdirected himself in law regarding state protection and rendered Wednesbury unreasonable decisions.

Court hearing

36.  In Form 86, the Applicant requested a hearing.  The hearing took place on 9 May 2018. The Applicant was in person. A Bengali interpreter rendered interpretation service in court.

37.  The Applicant said all the grounds of judicial review were in the affirmation. He had nothing to add. He just said his enemies were still looking for him in Bangladesh. It would be dangerous for him to go back home.

38.  The Applicant confirmed he had submitted all the information and materials to the Director and the Adjudicator for their consideration.

Discussion

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

40.  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]

41.  Many of the Applicant’s complaints were merely categorical accusations. I shall first deal with the more specific ones.

42.  It is clearly wrong for the Applicant to say the Adjudicator failed to arrange an oral hearing. The Applicant appeared before the Adjudicator for appeal on 19 September 2017. He answered the Adjudicator’s questions.

43.  The Applicant was represented by the Duty Lawyer Service up to the Director's decision stage. 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 in the later stages of the screening process.

44.  The Applicant complained the Adjudicator failed to call for psychological and psychiatric reports on him. However, the Applicant had not put forward any justification for the calling of such reports.

45.  The Adjudicator’s report shows he was aware of the undesirable conditions in Bangladesh. He need not state specifically whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights. It is for the Applicant to prove there was such a situation which bore relevance to his claim. The Adjudicator was right to find that the Applicant failed to do so.

46.  The Adjudicator also found the Applicant failed to prove there was state instigation or state acquiescence in his case.  The Adjudicator apparently accepted there was reasonable state protection in Bangladesh. His findings were not Wednesbury unreasonable.

47.  The Applicant's other complaints lacked specifics. I have reviewed the Adjudicator’s report under ‘rigorous examination and anxious scrutiny’. I am satisfied that the Adjudicator had good understanding of the Applicant’s case and the law. He considered his claim carefully and applied the law correctly. The Adjudicator was alive to the issues. There is no evidence that he had considered irrelevant facts or out-dated information. There is no evidence that he cherry-picked information or evidence. The Adjudicator had given sufficient attention to the situation in Bangladesh for his relevant consideration. He had not misdirected himself on any point of law or applied the wrong standard of proof or neglected relevant facts/inferences favourable to the Applicant. The Adjudicator had proper basis to come to his findings, conclusions and decisions which were all reasonable.

48.  The Adjudicator had engaged in joint endeavour with the Applicant in the screening inquiry. He had given sufficient opportunity for the Applicant to state and elaborate his case. He considered his claim carefully and applied the law correctly. His findings, conclusions and decisions were not Wednesbury unreasonable. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

49.  The Director is an interest party in the current application. I have also reviewed his reports under ‘rigorous examination and anxious scrutiny’. What has been said above of the Adjudicator is also true of the Director. His findings, conclusions and decisions were not Wednesbury unreasonable. The Director had also adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

50.  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.

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