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HCAL705/2018
[2019] HKCFI 374
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 705 of 2018
BETWEEN
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Abu Sama Salim |
Applicant |
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and |
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Fisher Paul Stephen, 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 34 (DOB: 1 July 1984).
2. The Applicant claimed he would be killed by members of the Communist Party (“CP”) because he refused to pay them money or to join them.
3. The Applicant also claimed he would be killed by members of the Awami League (“AL”) because he was a member of Chhatra Shibir, which was the student wing of Bangladesh Jamaat-e-Islami.
4. The Applicant said he supported AL when he was young. He later found there was something wrong with AL. He then joined Chhatra Shibir at the age of 16. The Applicant was active and responsible. He was subsequently promoted from the rank of ordinary member to member.
5. The relationship between Chhatra Shibir and the Communist Party was always strained. The Communist Party members often extorted people for money and forced people to join them.
6. In November 2007, some Communist Party members came to ask the Applicant for money. They said if the Applicant could not pay, he had to join their party. They gave the Applicant two days’ time to consider the matter.
7. Two days later, the Applicant received a phone call from one of the Communist Party people. The Applicant said he had no money. The man on the phone said the Applicant had to join them. The Applicant refused. The man warned the Applicant that he had to face a serious situation soon.
8. Later, the Applicant received another phone call. The caller blamed the Applicant for his refusing to join them or to pay them money. He threatened to eliminate the Applicant. The Applicant was scared. He had seen people being killed in similar situation. His father then went to Dhaka to make arrangement for his safety. The next day, some Communist Party people came to the Applicant’s house. One pointed a gun at the Applicant’s head. They abducted him to a forest. There they threatened to torture and kill him. The Applicant begged them not to. He said he would resign from the Chhatra Shibir. The Communist Party people decided to let him go for the time being.
9. The Applicant returned home. He did not report the matter to the police because he thought the police would turn a blind eye to the situation. He said the police would not interfere with matters relating to the Communist Party.
10. When the Applicant’s father came back from Dhaka, the Applicant told him what had happened. The father immediately arranged for the Applicant to leave home to stay with a relative. The Applicant later moved to live with another relative until April 2008.
11. On 9 April 2008, the Applicant left Bangladesh for China. On 12 April 2008, he sneaked into Hong Kong. He was arrested by the police on 19 July 2008. He lodged a torture claim subsequently.
12. The Applicant said he learnt from his family that the enemies were still looking for him. He did not believe the Bangladesh police would protect him because they were afraid of the Communist Party.
13. The Applicant said AL came into power in 2008/2009. The relationship between AL and Jamaat-e-Islami deteriorated. Since 2013, AL had targeted Chhatra Shibir members and tried to eliminate them all. A lot of Chhatra Shibir members were falsely accused by the police and imprisoned. Jamaat-e-Islami was later officially banned and many of its leaders were sentenced to death.
14. The Applicant alleged there was no state protection since AL was the ruling party in Bangladesh.
15. The Applicant said internal relocation was not viable as his enemies had a wide network. They could locate him easily in the country. The Applicant also said there was no one to support his living.
16. 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].
17. On 23 April 2018, the Applicant applied for leave for judicial review.
Timeline
18. Things happened in this order: –
| 2008-4-9 |
The Applicant left Bangladesh for China. |
| 2008-4-12 |
The Applicant sneaked into Hong Kong from China. |
| 2008-7-19 |
The Applicant was arrested by the police. |
| 2008-7-26 |
The Applicant filed a torture claim. |
| 2016-11-3 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) BOR2 risk and (iv) BOR3 risk. [“the Director’s decision”] |
| 2018-2-7 |
The Applicant appeared before the Board for appeal. He was represented by a lawyer. |
| 2018-4-3 |
The Board refused the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-4-23 |
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 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
22. In his decision dated 3 November 2016, 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 refused the Applicant's claim with respect to all the four applicable grounds.
The Board's decision
23. The Applicant appealed to the Board. He was represented by a lawyer in the hearing on 7 February 2018. The Applicant adopted his previous evidence and elected not to testify before the Adjudicator.
24. The Adjudicator perused the available evidence and counsels’ submission. He found the Applicant's claim had a number of unsatisfactory features. The Adjudicator found the Applicant’s knowledge of Chhatra Shibir scanty and even wrong in some places despite the Applicant claimed himself to be a promoted member and having served the party for years. The Adjudicator also noted the Applicant in his initial letters to the Director in July 2008 raised only the AL threats. He failed to mention his Chhatra Shibir involvement, which was central to his claim now. The Adjudicator did not accept that failure was due to oversight or omission on the part of the Applicant. He considered the Applicant's belated introduction of his Chhatra Shibir involvement was an attempt to tailor his case to suit the changed situation in Bangladesh. The Adjudicator found the Applicant incredible and his claim untrue. He did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR 3 risk.
25. On 3 April 2018, the Adjudicator refused the Applicant's appeal with respect to all the four applicable grounds.
Grounds of judicial review
26. 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.
27. 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.
28. The Applicant complained there were failures by the assigned duty lawyer at first instance resulting in a lack of and/or insufficient legal representation.
Court hearing
29. The hearing took place on 31 July 2018. The Applicant was in person. A Bengali interpreter provided service in court.
30. 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 those grounds.
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.
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. The Applicant complained the Adjudicator failed to meet the greater care and duty owed to a self-represented claimant. Actually, the Applicant was not self-represented. He had legal assistance from the Duty Lawyer service in both stages of the two-tier screening process.
35. The Applicant complained there were failures by the assigned duty lawyer at first instance resulting in a lack of and/or insufficient legal representation. The Applicant failed to give specifics.
36. The Applicant accused the Adjudicator failed to make sufficient inquiry. The Adjudicator’s investigation was thorough. There was no evidence that he failed to consider updated or relevant COI. There was also no evidence he took into account outdated cases, irrelevant information, information not officially recognised or simply hearsay. He did not cherry-pick information.
37. The Adjudicator need not consider the issues of state protection and state acquiescence because he did not accept the Applicant's claim as true. For the same reason, the Adjudicator did not have 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. There was also no necessity to call for psychological or psychiatric reports in such circumstance.
38. The Adjudicator had not misdirected himself in law or applied the wrong standard of proof.
39. 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. None of the Applicant’s complaints is substantiated.
Conclusion
40. 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 21st day of February 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 21/2/2019
Abu Sama Salim
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 21/2/2019
Fisher Paul Stephen, Esq.
Putative Respondent’s ref. no.:
USM 5221/16/11/160/B674
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1982/08 (formerly RBCZ/1385/08)
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).
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