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HCAL499/2018
[2019] HKCFI 25
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 499 of 2018
BETWEEN
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H K Kohinoor |
Applicant |
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and |
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Wesley Wong, 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 50 (DOB: 15 February 1968).
2. The Applicant said he supported the Bangladesh Communist Party (“BCP”). He claimed he would be harmed or killed by people of the opposition parties, i.e. the Awami League (“AL”) and the Bangladesh Nationalist party (“BNP"). AL and BNP were powerful political parties in Bangladesh. They ruled the country alternatively. BCP often had conflicts with AL and BNP.
3. The Applicant said he had been an active senior member of BCP since 1985/1986. He had conflicts with people from AL and BNP. For that, he had been injured by his enemies. He had also been arrested by the police four times up to 2001. He had jumped bail and a warrant of arrest was issued against him.
4. In 2001, BNP won the election. The Applicant was accused of using violence and causing disruption in the election. The BNP people targetted him, forcing him to go into hiding. The Applicant heard the BNP people would harm or kill him. A BNP leader had also filed a complaint to the police against him. The police thus issued a warrant of arrest and went to his house to look for him.
5. Between October 2001 and November 2004, the Applicant lived in different places in Bangladesh to avoid his enemies. He had also left the country for some time. In November 2001, the Applicant went to India and stayed there for a week before returning to Bangladesh. On 29 August 2003, the Applicant came to Hong Kong. He returned to Bangladesh on 15 September 2003. On 2 August 2004, the Applicant came to Hong Kong again and returned to Bangladesh on 1 November 2004.
6. On 29 November 2004, the Applicant last departed Bangladesh. He went in and out of Hong Kong several times and last entered the territory on 25 March 2005. The Applicant was allowed to stay until 8 April 2005 but he did not depart accordingly. From 9 April 2005, he began overstaying in Hong Kong.
7. In 2006, the Applicant applied for refugee status with UNHCR but he abandoned his claim later.
8. On 19 November 2009, the Applicant surrendered to the police. Three days later, he raised a torture claim[1]. The Director of Immigration (“the Director”) refused his torture claim on 17 June 2013.
9. On 27 June 2013, the Applicant appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) Board against the Director's decision on torture claim. He also filed a non-refoulement claim.
10. On 6 February 2014, the Board refused the Applicant's appeal on torture risk.
11. In the ensuing two-tier screening process here, the Director and the Board respectively refused the Applicant’s non-refoulement claim with respect to the remaining three applicable grounds: risk of persecution[2], risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and risk of violation of the right to life (BOR2 risk)[4].
12. On 27 March 2018, the Applicant applied for leave for judicial review.
Timeline
13. Things happened in this order: –
| 2003-8-29 |
The Applicant came to Hong Kong. He returned to Bangladesh on 15 September 2003. |
| 2004-8-2 |
The Applicant came to Hong Kong again and returned to Bangladesh on 1 November 2004. |
| 2004-11-29 |
The Applicant last departed Bangladesh. He went in and out of Hong Kong several times. |
| 2005-3-25 |
The Applicant last entered Hong Kong. He was allowed to stay until 8 April 2005. He did not leave accordingly. |
| 2005-4-9 |
The Applicant began overstaying in Hong Kong. |
| 2006 |
The Applicant applied for refugee status with UNHCR but he abandoned the claim later. |
| 2009-11-19 |
The Applicant surrendered to the police. |
| 2009-11-22 |
The Applicant raised a torture claim. |
| 2013-6-17 |
The Director refused the Applicant's torture claim. |
| 2013-6-27 |
The Applicant appealed to the Board against the Director's decision on torture claim. He also filed a non-refoulement claim. |
| 2014-2-6 |
The Board refused the Applicant's appeal on torture claim. |
| 2015-5-29 |
The Director refused the Applicant’s non-refoulement claim with respect to these two applicable grounds: persecution risk and BOR3 risk. [“the Director’s decision”] |
| 2017-2-10 |
The Director invited the Applicant to submit additional facts for the consideration of the last applicable ground: BOR2 risk. |
| 2017-2-24 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-3-1 |
The Director refused the Applicant’s non-refoulement claim with respect to the last applicable ground: BOR2 risk. [“the Director’s further decision”] |
| 2017-12-21 |
The Applicant appeared before the Board for appeal. |
| 2018-3-15 |
The Board refused the Applicant’s appeal with respect to these three applicable grounds: persecution risk, BOR2 risk and BOR3 risk. [“the Board’s decision”] |
| 2018-3-27 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
14. 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.
15. 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]
16. 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. Thus, the Adjudicator is the putative respondent; the Director is the putative interested party.
The Director's decision
17. In his decision dated 29 May 2015, the Director did not accept the Applicant faced any 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 two applicable grounds.
18. On 1 March 2017, the Director refused the Applicant’s claim with respect to the last applicable ground: BOR2 risk.
The Board's decision
19. The Applicant appealed against the Director's 2015 decision and the Director's 2017 further decision to the Board. The Adjudicator interviewed the Applicant on 21 December 2017.
20. The Adjudicator did not find the Applicant's allegations convincing. In particular, he noted the Applicant only surrendered to the authority in November 2009. That was several years after he last entered Hong Kong in March 2005. The Adjudicator did not believe the Applicant was a genuine non-refoulement protection seeker. He did not accept the Applicant's claim.
21. Even on the Applicant's own account of events, the Adjudicator considered the Applicant had not been inflicted with ill-treatment to a minimum level of severity. There was no risk under HKBOR. The Applicant's complained situation was only a private dispute with his alleged enemies. It was not persecution on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion).
22. The Adjudicator studied relevant country-of-origin information ("COI"). He was satisfied that reasonable state protection and internal relocation were available to the Applicant in any event.
23. The Adjudicator did not accept the Applicant faced any persecution risk, BOR2 risk or BOR3 risk. On 15 March 2018, he refused the Applicant's appeal with respect to those three applicable grounds.
Grounds of judicial review
24. In Form 86 and his affirmation, 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 at first instance by the assigned duty lawyer resulting in a lack of and/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 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.
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 18 July 2018. The Applicant was in person. A Bengali interpreter provided service in court.
30. The Applicant applied for the hearing to be adjourned until his legal aid appeal was heard. He applied for legal aid on 11 May 2018. The Director of Legal Aid refused his application on 10 July 2018. The appeal was to be heard on 24 August 2018.
31. The Adjudicator gave his decision on 15 March 2018. The Applicant applied for leave for judicial review soon enough on 27 March 2018 but he delayed applying for legal aid until 11 May 2018. There was no reason for the delay. There was also no certainty that the Applicant would win the legal aid appeal and be granted legal representation. There was no justification for adjournment. I refused the adjournment application.
32. The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. The Applicant, however, further complained the Adjudicator asked him how he survived in Hong Kong and concluded his claim too fast. He said the Adjudicator did not listen to him and did not understand what he said.
33. The Applicant confirmed he had submitted all the proofs he had to the Director and the Adjudicator for their consideration of his non-refoulement claim though he would like to get some more proofs from his country. The Applicant failed to specify what those proofs were.
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. 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 1 March 2017 was on BOR2 risk. The Applicant failed to submit additional facts for the Director’s consideration. The Director was entitled to consider the Applicant’s claim with respect to BOR2 risk without holding further interview. The Director's further decision must be read in conjunction with his earlier decision dated 29 May 2015, where there was a detailed analysis of the Applicant’s case.
37. The Applicant complained there were failures by the assigned duty lawyer at first instance. The Applicant failed to provide particulars in this regard.
38. The Applicant complained there was a lack of and/or insufficient legal representation. He had been represented by the Duty Lawyer Service up to the Director's decision dated 29 May 2015.
39. 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 how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
40. The Applicant raised his language problem. In the current application, a friend helped him 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, the Applicant 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.
41. The Applicant complained he received the appeal bundle only a few days before the Board hearing scheduled for 21 December 2017.
42. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[9] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[10], 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 Director in his letter dated 11 September 2018 stated the appeal bundle was served on the Applicant on 14 December 2017. That was 7 calendar days (or 6 working days) prior to the Board hearing. It was served on the Applicant in time.
44. The 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.[11] That would mean he knew well what was asked and how to answer. He was not confused.
47. The Adjudicator studied relevant COI and concluded that reasonable state protection and internal relocation were available to the Applicant. His conclusion was not Wednesbury unreasonable. In fact, those were not real issues as the Adjudicator actually did not believe the Applicant was a genuine non-refoulement protection seeker.
48. For the same reason, there was no need for the Adjudicator to call for psychological or psychiatric reports, or 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.
49. There was no evidence the Adjudicator cherry-picked information or took into account outdated cases, irrelevant information, information not officially recognised or simply hearsay.
50. There was also no evidence the Adjudicator misdirected himself in law or applied the wrong standard of proof.
51. The Applicant complained the Adjudicator concluded his claim too fast. He accused the Adjudicator did not listen to him and did not understand what he said. The accusations were not supported by evidence. The Adjudicator’s report showed the Adjudicator grasped the Applicant's case well and gave it due consideration.
52. The Applicant complained the Adjudicator asked him irrelevant questions of how he survived in Hong Kong.
53. The Applicant only surrendered to the authority in November 2009. That was several years after he last entered Hong Kong in March 2005. The Adjudicator was entitled to find out all the circumstances of his stay in Hong Kong for proper assessment. After due inquiry and consideration, he did not believe the Applicant was a genuine non-refoulement protection seeker. That conclusion was not Wednesbury unreasonable.
54. 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 of the case. 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. None of the Applicant’s complaints is substantiated.
Conclusion
55. 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 judicial review.
Dated 8th day of January 2019
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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
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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 8/1/2019
H K Kohinoor
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 8/1/2019
Wesley Wong, Esq.
Putative Respondent’s ref. no.:
USM 1706/15/6/92/B232
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 741/14 & RBCZ 9000319/17 (formerly RBCZ 2001550/14)
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] 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.
[10] 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 personal 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.
[11] The Applicant's affirmation, Point 14 on page 4.
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