|
HCAL375/2018
[2019] HKCFI 2053
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 375 of 2018
BETWEEN
|
Pavel Gomes |
Applicant |
|
and |
|
|
Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
|
and |
|
|
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 national of Bangladesh. He is now aged 53 (DOB: 5 November 1965).
2. The Applicant claimed he would be harmed or killed by some members of the Shomobai Committee (“SC”) and his cousins. He also feared he would be arrested by the Bangladesh police.
3. The Applicant said he was a member of SC, which was a lending club. Its leaders were also leaders of the Awami League (“AL”).
4. The Applicant started his business in 1984. He had borrowed 3.5 million Takas from SC for his business. He was able to pay the interests due. When he went abroad on business, his brothers managed the business for him.
5. The Applicant was originally a Hindu but he married a Christian wife in 1993. He converted to Christianity in 1997.
6. The Applicant's mother and siblings learnt of the Applicant's conversion in late 1997. They did not like it and refused to allow the Applicant's eldest daughter to go to the church. The Applicant's several cousins threatened to kill the Applicant for his conversion.
7. In 1999, the Applicant's mother and siblings said the Applicant's wife should go back to her family. The Applicant wanted to break away from his mother and siblings but his brothers were controlling his business now. They said the Applicant should leave the family since he had converted to Christianity. In late 1999, the Applicant moved with his wife and two daughters to Dhaka.
8. In late 2001, some SC people and policemen approached the Applicant. The SC people asked the Applicant to repay the loan. The Applicant could not. He was assaulted. The police took him to the police station and detained him for one night. The next day, the Applicant was released. He was allowed seven days to pay up the money he owed SC.
9. The Applicant took his wife and daughters to leave Dhaka to live in other places. The SC people followed him but the Applicant was tipped off every time.
10. Although the Applicant was not assaulted again after 2001, he still feared for his safety. He said he could not stay at home or at one place to make a living. In 2003, a cousin threatened to kill him because he owed the cousin money and because of his conversion to Christianity.
11. The Applicant left Bangladesh on 15 August 2005. He entered Hong Kong as visitor. He did not seek asylum immediately but went to China and Macau.
12. The Applicant last entered Hong Kong on 22 January 2006. He overstayed from 6 February 2006. He made a claim to UNHCR in 2006. That application was rejected in 2007.
13. The Applicant was arrested on 26 May 2008. He lodged a torture claim on 5 February 2009. That claim was deemed as withdrawn on 27 November 2013 by the Director of Immigration (“the Director”) since the Applicant failed to submit documents.
14. The Applicant had failed to report for recognizance since 2 January 2014. On 27 June 2015, he was re-arrested. He raised a non-refoulement claim on 3 July 2015.
15. The Applicant learnt from his wife that the SC people were still looking for him and the Bangladesh police had issued a warrant against him but it was not clear what the offence was.
16. The Applicant said his enemies were powerful due to their connection with AL so he would not be safe in Bangladesh.
17. In the ensuing two-tier screening process here, and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) respectively rejected 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].
18. On 8 March 2018, the Applicant applied for leave for judicial review.
Respondent/Interested party
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 case on a rehearing basis.
20. 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]
21. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board as respondent and the Director as interested party. The Board is the putative respondent; the Director is the putative interested party.
The Director's decision
22. In his decision dated 16 June 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 Director rejected the Applicant’s non-refoulement claim with respect to all the four applicable grounds.
The Board's decision
23. The Applicant appealed to the Board. The Adjudicator interviewed him on 20 November 2017.
24. The Adjudicator found the Applicant was a debtor fleeing for his liability and trying his luck overseas rather than looking for non-refoulement protection.
25. Even on the Applicant's account of events, the Adjudicator noted the Applicant was only assaulted once in late 2001. He was not severely injured and he was not further confronted by his enemies. The Adjudicator was not satisfied the SC people or the Applicant’s relatves really wanted to kill the Applicant. There was no real threat to his life. The Adjudicator found no state involvement or acquiescence. He considered reasonable state protection and internal relocation were available to the Applicant in any event.
26. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 1 March 2018, the Adjudicator rejected the Applicant's appeal with respect to all the four applicable grounds.
Grounds of judicial review
27. The Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.
28. The Applicant said he lacked legal representation and language assistance after the Director's decision.
29. The Applicant complained he was given the appeal bundle only a few days before the Board hearing. As such, he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said he was confused of what happened. He complained the Adjudicator failed to make appropriate arrangement.
30. The Applicant further complained the Adjudicator relied on outdated cases or information not officially recognized or simply hearsay.
Court hearing
31. The hearing took place on 3 September 2018. The Applicant was in person. A Bengali interpreter provided service in court.
32. The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. The Applicant had nothing to add to his grounds.
33. The Applicant confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
34. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
35. 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]
36. The Applicant complained there was a lack of legal representation after the Director's decision dated 16 June 2017.
37. 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.[8] The Applicant failed to show his case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
38. The Applicant raised his language problem.
39. It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.[9]
40. In the current application, a friend helped the Applicant to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
41. The Applicant complained he received the appeal bundle only a few days before the Board hearing.
42. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[10] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[11], 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 hearing.
43. The Applicant said he received appeal bundle on 13 November 2017. That was 7 calendar days (or 6 working days) prior to the Board hearing scheduled for 20 November 2017. The bundle was served on the Applicant in time.
44. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.
45. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing.
46. The Applicant said he answered all the questions honestly in the Board hearing.[12] That means he knew what was asked and how to answer. He was not confused.
47. There was no evidence the Adjudicator had taken into account outdated cases or information not officially recognised or simply hearsay.
48. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding 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 claim 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
49. 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 to apply for judicial review.
Dated the 19th day of August 2019
|
(Henry Ng)
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 the Applicant’s solicitors must:
|
|
|
|
|
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)).
|
|
Sent to the Applicant on 19/8/2019
Pavel Gomes
Applicant’s ref. no:
Nil.
|
|
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 19/8/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7552/17/6/248/B874
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 856/17 (formerly RBCZ 12270/15)
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] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570, para 14(1).
[8] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[9] See Re Zaman Muhammad [2018] HKCA 486 at [13]; Re Gurnishan Singh [2018] HKCA 704 at [13].
[10] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.
[11] 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 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.
[12] The Applicant's affirmation, Point 8 on page 4.
|