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HCAL878/2018
[2019] HKCFI 1412
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 878 of 2018
BETWEEN
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Hossain Almgir |
Applicant |
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and |
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Chow Siu-hung, Esq. |
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 national of Bangladesh. He is now aged 32 (DOB: 1 January 1987).
2. The Applicant claimed he would be harmed or killed by some people including Azizul and Karim of the Awami League (“AL”), which was the ruling party in Bangladesh.
3. The Applicant joined the Jamaat-e-Islami Party (“JIP”) in 2011. He did not hold any post but was an active member.
4. JIP was the main opponent of AL. In July 2011, Azizul (the Secretary General of AL in the local area) and his subordinates approached the Applicant. Azizul asked the Applicant not to work for JIP any more. The Applicant refused.
5. In August 2011, Karim (an ordinary AL member) again asked the Applicant to join AL. The Applicant refused. Karim then said there would be bad consequences for the Applicant. In the same month, the Applicant was attacked by 10 odd men in the street. He could not identify the assailants but he believed they belonged to AL. The Applicant was injured. His parents reported the matter to police but the police did not take any action.
6. In January 2012, Karim and some AL people came to the Applicant’s shop to cause damage. The Applicant was not in the shop at that time. The AL people told the Applicant’s employee that they would kill the Applicant if they found him.
7. The Applicant was concerned with his safety. He fled to another village to stay with a friend. He learnt from his parents that Karim had come to look for him.
8. The Applicant moved further to Dhaka and stayed there till April 2012. He learnt Karim had complained to the police, accusing him of vandalizing public properties in his home town. The police were thus looking for the Applicant.
9. The Applicant finally left Bangladesh for China on 20 April 2012. He later learnt his enemies further falsely accused him of murder in Bangladesh. On 19 February 2014, the Applicant sneaked into Hong Kong. He was arrested by the police on 26 February 2014.
10. The Applicant maintained contact with his family in Bangladesh. His mother told him AL was still in power and his enemies were looking for him.
11. The Applicant did not think he could get state protection. He also thought his powerful enemies could locate him wherever he was in Bangladesh.
12. 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].
13. On 21 May 2018, the Applicant applied for leave for judicial review.
Timeline
14. Things happened in this order: –
| 2012-4-20 |
The Applicant left Bangladesh for China. |
| 2014-2-19 |
The Applicant entered Hong Kong illegally from China. |
| 2014-2-26 |
The Applicant was arrested by the police. |
| 2014-3-2 |
The Applicant raised a non-refoulement claim. |
| 2015-9-14 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: torture risk, persecution risk and BOR3 risk. [‘the Director's decision”] |
| 2016-10-13 |
The Applicant appeared before the Board. |
| 2017-5-23 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-5-29 |
The Applicant made submission to the Director. |
| 2017-10-3 |
The Applicant made submission to the Director again. |
| 2017-10-12 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [‘the Director's further decision”] |
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On the same day, the Board invited the Applicant to submit additional grounds of petition, information or evidence in relation to the Director's further decision. The Applicant did not respond. |
| 2018-5-9 |
The Board refused the Applicant's claim with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-5-21 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
15. 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.
16. 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]
17. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Adjudicator as respondent and the Director as interested party. The Adjudicator is the putative respondent; the Director is the putative interested party.
The Director's decision
18. In his decision dated 14 September 2015, the Director did not accept the Applicant faced any torture risk, persecution risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant's claim with respect to those three applicable grounds.
19. On 12 October 2017, the Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk.
The Board's decision
20. The Applicant appealed to the Board. The Applicant was absent from the hearing on 5 September 2016. It was then adjourned to 13 October 2016. The Applicant was present. He answered the Adjudicator's inquiry.
21. On the Applicant’s account of events, the Adjudicator found the Applicant had not been inflicted with ill-treatment to the minimum level of severity. The alleged enemies had no real intention to severely harm or kill him. The complained situation was only a private dispute. It had nothing to do with any Convention reasons: race, religion, nationality, membership of a particular social group or political opinion There was no evidence of state involvement, consent, acquiescence or encouragement. The Adjudicator found the Applicant did not leave Bangladesh after he had learnt his alleged enemies would kill him. Rather, he left the country after he had heard the police were after him for the false accusation of vandalizing public properties. The Applicant also left China for Hong Kong only after he had learnt the alleged enemies further falsely accused him of murder in Bangladesh. The Adjudicator considered the Applicant left Bangladesh not because the alleged enemies wanted to kill him but that he wanted to avoid the Bangladesh police. The Adjudicator found the Applicant failed to establish any risk that warranted non-refoulement protection.
22. The Adjudicator considered relevant country-of-origin information ("COI"). He found reasonable state protection and internal relocation were available to the Applicant in any event.
23. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 9 May 2018, he refused the Applicant's non-refoulement claim with respect to all the four applicable grounds.
Grounds of judicial review
24. 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.
25. The Applicant accused the Adjudicator misdirected himself in law; failed to make sufficient inquiry; failed to consider updated or relevant COI; took into account outdated cases and irrelevant information; considered information not officially recognised or simply hearsay; 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 call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; applied the wrong standard of proof.
26. The Applicant complained there were failures by the assigned duty lawyer at first instance resulting in a lack of or insufficient legal representation.
27. The Applicant also complained he was given the appeal bundle only a few days before the Board hearing. As such, he could not well prepare for the appeal due to language problem and lack of legal representation.
28. Although the Applicant did not name the Director as respondent but only as interested party, he accused the Director decided on BOR2 risk without screening.
Court hearing
29. The hearing took place on 27 August 2018. The Applicant was in person. A Bengali interpreter provided service in court.
30. The Applicant said all the grounds of judicial review were in the documents. He did not elaborate.
31. The Applicant confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim. He complained the Director and the Adjudicator did not accept the documents he had submitted.
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. It was wrong for the Applicant to say the Director had not screened his non-refoulement claim with respect to BOR2 risk. The Director’s further decision dated 12 October 2017 was on BOR2 risk.
35. The Applicant complained the Director and the Adjudicator did not accept the documents he had submitted.
36. The Applicant submitted to the Director two documents with his written signification dated 29 May 2017 and 3 October 2017. One was a First Information Report from the Bangladesh police containing a murder complaint. The complaint was filed by the wife of the murdered man against the Applicant and some JIP members. The other document was a declaration by Mr Ruhul (President of JIP in the Lakshmipur District). Mr. Ruhul said the Applicant was an active JIP member. He did not believe the Applicant was involved in the murder. He said the Applicant would be killed by the AL people if he went back to Bangladesh. Mr. Ruhul even suggested the Applicant should not return to Bangladesh within four years from the date of his declaration, which was made on 23 July 2015.[8]
37. The Director did not find the two documents convincing. In paragraphs 6-7 of his further decision dated 12 October 2017, the Director gave full reasons for not relying on those documents. The Adjudicator agreed with the Director's analysis.[9] The Adjudicator did not find the two documents reliable. His conclusion was not Wednesbury unreasonable.
38. The Applicant complained there were failures by the assigned duty lawyer at first instance. He failed to provide particulars in this regard.
39. The Applicant complained there was a lack of or insufficient legal representation. He had been represented by the Duty Lawyer Service up to the Director's decision dated 14 September 2015.
40. 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.[10] The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
41. The Applicant raised his language problem. In the current application, Form 86 and the Applicant's affirmation were prepared in English. 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 he was still represented by the Duty Lawyer Service and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
42. The Applicant complained he received the appeal bundle only a few days before the Board hearing.
43. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[11] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[12], 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. There was no evidence the rule had been breached.
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 Adjudicator had considered the issues of state protection and state acquiescence. He had proper basis to conclude there was no state acquiescence. He had also studied relevant COI to conclude reasonable state protection was available to the Applicant.
47. The Applicant failed to show there was any necessity to call for psychological or psychiatric reports. He also failed to show there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights.
48. There was no evidence the Adjudicator cherry-picked information or took into account outdated cases, irrelevant information, information not officially recognised or simply hearsay.
49. There was no evidence the Adjudicator misdirected himself in law or applied the wrong standard of proof.
50. 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 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
51. 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 judicial review.
Dated the 18th day of June 2019
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(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
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Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s 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 18/6/2019
Hossain Almgir
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 18/6/2019
Chow Siu-hung, Esq.
Putative Respondent’s ref. no.:
USM 2298/15/9/151/B306
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1017/15 & RBCZ/9001948/17 (formerly RBCZ/1526/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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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] The Director’s further decision, para 3.
[9] The Board's decision, para 70.
[10] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[11] 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.
[12] 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.
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