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HCAL603/2018
[2019] HKCFI 1977
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 603 of 2018
BETWEEN
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MD Sarif |
Applicant |
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and |
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Stuart M. I. Stoker, Esq. |
Putative Respondent |
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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 35 (DOB: 2 January 1984).
2. The Applicant claimed his girlfriend Lucky committed suicide because of him. The girl’s family wanted to kill him for revenge. Lucky’s paternal uncle Shahid was especially against the Applicant because he and the Applicant belonged to different political parties. The Applicant belonged to the Jamaat-e-Islami Party [“JEI”] while Shahid was the union chairman of the Awami League (“AL”) in the area where the Applicant lived.
3. The Applicant said he met Lucky in 2010 and the two soon fell in love. Lucky told her parents in July 2012. Her parents did not approve their relationship and wanted Lucky to marry someone else. Lucky left her family for the Applicant in August 2012.
4. The Applicant and Lucky intended to get married. On the wedding day, Lucky’s family came. The Applicant was not there. Lucky’s family attacked the Applicant's brother and mother. They took Lucky away.
5. The Applicant's brother reported the matter to the police but he was ignored.
6. The Applicant was informed of the incident by his friend. He dared not go home. He went to stay with his aunt for a month.
7. The Applicant contacted his mother. His mother was angry and asked the Applicant not to come back.
8. The Applicant later learned that Lucky had committed suicide. Her family put the blame on the Applicant and vowed to kill him. They also lodged a complaint against the Applicant to the police.
9. The Applicant was scared. He made no complaint to the authority because Lucky’s uncles were government officials and one of them was a police officer.
10. The Applicant said he could not get any assistance from his own party.
11. On 20 October 2012, the Applicant left Bangladesh for China.
12. On 14 January 2013, the Applicant swam to Hong Kong. He then raised a torture claim[1].
13. On 4 December 2013, the Director of Immigration (“the Director”) rejected the Applicant’s torture claim. [There was no evidence of appeal.]
14. The Applicant later raised a non-refoulement claim.
15. The Applicant said his friend informed him that the Bangladesh police wanted to arrest him.
16. The Applicant also said his aunt told him Lucky’s family were still looking for him.
17. The Applicant said state protection and internal relocation were not available to him.
18. In the ensuing two-tier screening process, the Director and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively rejected the Applicant’s claim with respect to the remaining three applicable grounds: (i) risk of persecution[2], (ii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iii) risk of violation of the right to life (BOR2 risk)[4].
19. On 10 April 2018, 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 complaint on a rehearing basis.
21. 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]
22. In Form 86, 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
23. On 18 January 2013, the Applicant raised a torture claim. The Director rejected his torture claim on 4 December 2013. There was no evidence of appeal.
24. The Applicant later raised a non-refoulement claim. The Director rejected his claim on 17 November 2016 with respect to these three applicable grounds: persecution risk, BOR2 risk and BOR3 risk.
The Board’s decision
25. The Applicant appealed against the Director's 2016 decision on persecution risk, BOR2 risk and BOR3 risk. The Adjudicator interviewed him on 14 March 2018.
26. The Adjudicator accepted the Applicant had joined JEI but he found the Applicant was only a low-level JEI supporter. There was no reason he would be targeted by AL or the Bangladesh authority.
27. The Adjudicator also accepted the Applicant had a relationship with Lucky. The Applicant, however, failed to prove with concrete evidence that Lucky had committed suicide and her family members were after him. The Adjudicator did not accept the Bangladesh police were pursuing the Applicant either.
28. The Adjudicator noted the Applicant had not suffered any harm. There was no evidence the alleged enemies acted on behalf of the state. The complained situation was not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion).
29. The Adjudicator found reasonable state protection was available to the Applicant in any event. He also considered the alleged risk posed by Lucky’s family was localized and internal relocation was viable in the Applicant's case.
30. The Adjudicator did not accept the Applicant faced any persecution risk, BOR2 risk or BOR3 risk. On 26 March 2018, he rejected the Applicant’s non-refoulement claim with respect to those three applicable grounds.
Grounds of judicial review
31. 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.
32. The Applicant accused the Adjudicator misdirected himself in law; failed to make sufficient inquiry; failed to consider updated or relevant country-of-origin information ("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.
33. The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of or insufficient legal representation.
34. The Applicant further 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.
Court hearing
35. The hearing took place on 24 September 2018. The Applicant was in person. A Bengali interpreter provided service in court.
36. The Applicant said a ‘friend’s friend’ helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. He had nothing to add to his grounds.
37. The Applicant confirmed he had submitted all of his case to the Director and the Adjudicator except a Bangladesh police first information report. He said he was the 9th Accused there under the name of Khan Md. Shariful Islam (Sharif). The Applicant submitted that report to the court on 31 July 2018. In court, he said he only got it 5-6 days before.
Discussion
38. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
39. 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]
40. The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 17 November 2016. He complained there were failures by the assigned duty lawyer. However, he failed to specify what the failures were.
41. The Applicant complained there was a lack of or insufficient legal representation. 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.
42. The Applicant complained there was a lack of language assistance despite he was assisted by interpreters while he was still represented by the Duty Lawyer Service and during the hearing before the Director and the Adjudicator.
43. It is trite that high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.[9]
44. In the current application, a ‘friend’s 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. The Applicant had much exaggerated his language problem.
45. The Applicant complained he received the appeal bundle only a few days before the Board hearing. 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. There was no evidence the rules had been breached.
46. 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.
47. 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.
48. 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.
49. The Adjudicator was not satisfied there was any risk that warranted non-refoulement protection. Reasonable state protection was available to the Applicant in any event.
50. There was no evidence of state acquiescence or any pattern of gross, flagrant or mass violations of human rights in Bangladesh.
51. The Applicant also failed to prove there was necessity for the Adjudicator to call for psychological or psychiatric reports.
52. There was no evidence the Adjudicator had cherry-picked information or taken into account outdated cases, irrelevant information, information not officially recognised or hearsay.
53. There was also no evidence the Adjudicator had misdirected himself or applied the wrong standard of proof.
54. The Applicant showed the court a First Information Report which he said he obtained only in late July 2018. He failed to explain why he got that report so late. The document was not available before the Adjudicator. The Applicant failed to persuade this court such evidence should be admitted now.
55. 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
56. 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 9th day of August 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
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 9/8/2019
MD Sarif
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 9/8/2019
Stuart M. I. Stoker, Esq.
Putative Respondent’s ref. no.:
USM 5338/16/11/277/B681
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1272/16 (formerly RBCZ 2002664/14)
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] 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 13 on page 4.
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