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HCAL699/2017
[2018] HKCFI 1138
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 699 of 2017
BETWEEN
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Hossain Monir |
Applicant |
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and |
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Director of Immigration
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1st Putative Respondent |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
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2nd Putative Respondent |
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 29 (DOB: 1 March 1989).
2. The Applicant claimed he fled from his home country for life as some people of the Awami League Party (“AL”) threatened to harm or kill him because of his association with the Bangladesh Nationalist Party (“BNP”).
3. The Applicant said he and his family were affiliated with BNP. In late 2013, some AL people asked him to quit BNP to join and vote for AL in the coming election. One AL cadre called Delu also threatened the Applicant not to marry Nupur, whose father was a local BNP leader. The Applicant did not succumb to those threats. He continued to see Nupur and acted enthusiastically for BNP in the election campaign.
4. One day, a gang of AL members approached the Applicant but he managed to escape. On his relatives’ advice, the Applicant relocated himself to another place called Feni. He lived there uneventfully until March 2014. Then some AL men found him and tried to assault him. The Applicant again managed to escape. The next day, all his jobs were terminated. The Applicant's father had information that the AL people wanted to kill the Applicant. He told the Applicant to leave Bangladesh. The father went to Feni to make arrangement for the Applicant. Meanwhile, some men went to the Applicant’s home to ask for his whereabouts. The Applicant’s mother refused to tell those men, who then destroyed the Applicant’s garden and threatened they would kill the Applicant.
5. The Applicant went to Dhaka. One day, some policemen came to look for him. They asked the Applicant’s cousin where the Applicant was. At that time, the Applicant was in his neighbour’s place. He recognized some of the police officers and suspected the police were aiding AL to find him. The Applicant believed if the police got him, they would hand him to the AL people.
6. The Applicant had not sought assistance from any authority in Bangladesh because AL was in power. He said his enemies were influential and related to politicians.
7. The Applicant claimed the AL people ferreted out BNP supporters in every village. The BNP supporters had no choice but to quit BNP or to leave Bangladesh.
8. The Applicant believed internal relocation was not viable because the AL people had wide network in the country to find him.
9. The Applicant entered Hong Kong illegally in June 2014 and lodged a non-refoulement subsequently.
10. In the ensuing two-tier screening process (“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].
11. On 29 September 2017, the Applicant applied for leave for judicial review.
Chronology of events
12. Things happened in this order: –
| 2014-6-13 |
The Applicant left Bangladesh. He first went to China. |
| 2014-6-16 |
The Applicant was arrested in Hong Kong for illegal remaining. |
| 2014-6-19 |
The Applicant lodged a non-refoulement claim. |
2016-3-17 &
2016-4-18 |
The Director held a screening interview with the Applicant. |
| 2016-6-21 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk, and (iii) CIDTP risk (BOR3 risk). [“the Director's decision”] |
| 2017-4-25 |
The Director invited the Applicant to supply additional information for the consideration of life risk (BOR2 risk). |
| 2017-5-9 |
The Applicant failed to submit additional information by deadline or thereafter. |
| 2017-5-12 |
The Director rejected the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director's further decision”] |
| 2017-6-2 |
The Applicant appeared before the Board for appeal. |
| 2017-9-18 |
The Board dismissed the Applicant’s appeal with respect to all the four applicable grounds. [“the Board's decision”] |
| 2017-9-29 |
The Applicant applied for leave for judicial review. |
Respondents
13. The Unified Screening Mechanism is a 2-tier screening 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.
14. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant only named the Director as respondent. He repeated in his affirmation dated 29 September 2017 that he requested for judicial review against the Director. However, he attached the Board’s decision and asked the court to look into the matter. In the circumstance, I take it that the Applicant would like to seek judicial review against both the Director and the Board. The Director is the first putative respondent; the Board is the second putative respondent.
15. An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.[5]
16. In the present case, the two Director's decisions were more than three months old by the time the Applicant filed his current application on 29 September 2017. However, the Applicant should not seek judicial review against the Director's decisions before the Board rendered its appeal decision on 18 September 2017. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the two Director's decisions albeit late on 29 September 2017; the application against the Board's decision was made within time.
Director of Immigration (the Director)
17. In the Director's decision dated 21 June 2016, the immigration officer found the Applicant’s claim not coherent or consistent. He considered the Applicant's fear of being harmed or killed by the AL people as far-fetched. The officer did not accept there was a real risk of the Applicant’s being harmed or ill-treated by the AL people. The officer considered reasonable state protection and internal relocation were available to the Applicant in Bangladesh.
18. The officer did not accept there was any torture risk, persecution risk or BOR3 risk in the Applicant's case.
19. The officer refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk, and (iii) CIDTP risk (BOR3 risk).
20. 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 (BOR2 risk). However, the Applicant did not respond by the deadline of 9 May 2017 or thereafter.
21. In the Director’s further decision dated 12 May 2017, the 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).
22. The officer refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground: life risk (BOR2 risk).
TCAB/NCPO (“the Board”)
23. During the appeal hearing, the Applicant only answered preliminary questions about his identity, nationality and background. When the Adjudicator started to question him about his claim, the Applicant stated he wished to rely on the submitted materials. The Adjudicator cautioned the Applicant if that was the course he wished to adopt, the Board would make the decision on the submitted materials only. The Applicant indicated he understood.[6]
24. On the information before him, the Adjudicator concluded the risk of harm which the Applicant claimed was ‘far-fetched and fanciful’.[7] He found the Applicant failed to establish a well-founded persecution risk. There was also no real BOR2 risk, BOR3 risk or torture risk.
25. On 18 September 2017, the Adjudicator dismissed and the Applicant’s non-refoulement claim with respect to all the four applicable grounds.
Grounds for judicial review
26. In his affirmation dated 29 September 2017, the Applicant just said his life was not safe in Bangladesh. He did not want to go back.
Court hearing
27. The Applicant did not attend the hearing scheduled on 24 April 2018. The two telephone numbers he had left on record were contacted. They were invalid numbers.
28. The Applicant only sent an undated letter to this court more than a month later, which was received on 28 May 2018. He claimed he ‘did not received any letter information from the High Court of Hong Kong follow up hearing dated 24 April 2018’. He requested for a new hearing date to be fixed.
29. I do not accept the Applicant had not got any notice of the hearing scheduled on 24 April 2018. I am sure he chose to be absent from that hearing. His request for another hearing is thus refused.
Discussion
30. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
31. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on the claimant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[8]
32. Although the Applicant had not stated any specific complaint, the court is still obliged to look at his case under ‘rigorous examination and anxious scrutiny’.
33. I have reviewed the Director’s decision plus further decision and the Board’s decision under ‘rigorous examination and anxious scrutiny’. The Director and the Adjudicator independently found that the Applicant faced no real torture risk, persecution risk, BOR3 risk or BOR2 risk. They also independently found reasonable state protection and internal relocation were available to the Applicant. I am satisfied the Director and the Adjudicator had proper basis for their respective findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. They had each 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 reports of the Director and the Adjudicator showed they were acquainted with the facts and the law. They considered the Applicant’s case carefully and applied the law correctly. The Director and the Adjudicator were entitled to render those findings, conclusions and decisions which were all reasonable. They had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
34. The Applicant has no reasonable grounds to complain. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.
Dated 29th day of May 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 29/5/2018
Hossain Monir
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 29/5/2018
Director of Immigration
1st Putative Respondent’s ref. no.:
QA T/C 2259/15 & RBCZ/9001622/17 (formerly RBCZ/2558/14)
Torture Claims Appeal Board / Non-Refoulement Claims Petition Office
2nd Putative Respondent’s ref. no.:
USM 4045/16/7/15/B555
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] Order 53, rule 4 of the Rules of the High Court.
[6] The Adjudicator's report, para 34.
[7] The Adjudicator's report, para 40.
[8] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
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