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HCAL720/2018
[2019] HKCFI 1405
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 720 of 2018
BETWEEN
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Md Jafor Sheikh |
Applicant |
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and |
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Fraser Syme, 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 29 (DOB: 1 June 1989).
2. The Applicant claimed he would be harmed or killed by his father’s employers Selim and Shamim Osman due to a land dispute.
3. The Applicant said his father was a member of the Jamaat Islami Party. His father had two friends called Selim and Shamim Osman. Selim was a cadre of the Awami League (“AL”) and a gangster while Shamim Osman was a member of the parliament. The Applicant's father worked as an accountant for them.
4. In 2009, the Applicant's father bought a piece of land with his own money and some money from the company. He registered the land in the Applicant's name. Selim and Shamim Osman came to know about that in April 2010. They asked the Applicant's father to transfer the land to them or they would kill him and the Applicant. The Applicant's father refused because he had also used his own money to buy the land.
5. A few days later, the Applicant's father again argued with Selim and Shamim Osman. He was assaulted by them.
6. Some weeks later, Selim and Shamim Osman brought some armed men to the Applicant's house. They assaulted the Applicant's father. Shamim Osman told Selim to shoot the Applicant but the Applicant's father blocked Selim. The Applicant's father got shot and the Applicant managed to escape. He later learnt his father had died of the gunshot.
7. The Applicant returned to his hometown. He complained to the police but the police refused to make a report, saying an unnamed member of the parliament instructed them not to accept the Applicant's complaint.
8. A week later, Selim went to harass the Applicant's mother. He demanded the Applicant to go to their office to discuss the land issue.
9. The Applicant's mother told the Applicant to leave home for safety. The Applicant stayed with his aunt for several months. Then his friend Sujon told him the enemies were looking for him. The Applicant thus moved to live with another aunt and he stayed there for 18 months.
10. On 15 February 2012, the aunt’s husband helped the Applicant to leave Bangladesh for China. The Applicant stayed in China for more than a year. In August 2013, he sneaked into Hong Kong. He was arrested by the police three years later on 17 September 2016. The Applicant raised a non-refoulement claim on 24 October 2016.
11. The Applicant said reasonable state protection was not available to him because the Bangladesh police were influenced by members of the Parliament.
12. The Applicant said internal relocation was not viable as Selim and Shamim Osman had a large network in the country, so they could locate him easily.
13. The Applicant said he had lost contact with his friend Sujon now. He also said his mother was suffering from dementia, so he did not know what the current situation was in his country.
14. 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].
15. On 25 April 2018, the Applicant applied for leave for judicial review.
Timeline
16. Things happened in this order: –
| 2012-2-15 |
The Applicant left Bangladesh for China. |
| Aug 2013 |
The Applicant sneaked into Hong Kong from China. |
| 2016-9-17 |
The Applicant was arrested by the police. |
| 2016-10-24 |
The Applicant filed a non-refoulement claim. |
| 2017-8-22 |
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”] |
| 2018-3-21 |
The Applicant appeared before the Board for appeal. |
| 2018-4-20 |
The Board dismissed the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-4-25 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
17. 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.
18. 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]
19. 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
20. In his decision dated 22 August 2017, 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
21. The Applicant appealed to the Board. The Adjudicator interviewed him on 21 March 2018.
22. The Adjudicator found there were inconsistent and unconvincing features in the Applicant's allegations. The Applicant told the Adjudicator that he never knew the amount of money his father had used to buy the land in question. The Adjudicator pointed out to the Applicant there were amounts stated in his earlier statements. The Applicant then sought to say those figures were created by the interpreter. The Applicant told the Adjudicator he never signed any document for land registration in his country. The Adjudicator found it implausible that the Applicant’s father could have registered the land in the Applicant's name then. The Adjudicator noted from country-of-origin information ("COI") that one of the alleged enemies Shamim Osman was actually outside Bangladesh between 2001 and 2009. The Adjudicator also noted the Applicant had not applied for non-refoulement protection until he was arrested. By then, he had already been in Hong Kong for more than three years. The Adjudicator did not accept the Applicant did not know how to apply for protection during such a long period. He did not find the Applicant credible.
23. The Adjudicator rejected the Applicant’s claim. On 20 April 2018, he refused the Applicant's appeal with respect to all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR2 risk.
Grounds of judicial review
24. In 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; 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.
26. The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of or insufficient legal representation.
27. 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.
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 5 September 2018. The Applicant was in person. A Bengali interpreter provided service in court.
30. The Applicant said two friends 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. 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 decision dated 22 August 2017 was in relation to all the four applicable grounds including BOR2 risk.
35. The Applicant complained there were failures by the assigned duty lawyer. However, he failed to specify what the failures were.
36. 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 22 August 2017.
37. 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.
38. The Applicant raised his language problem. In the current application, two friends helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find people to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
39. The Applicant complained he received the appeal bundle only a few days before the Board hearing.
40. 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. There was no evidence such rules had been breached.
41. 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.
42. 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.
43. The Applicant complained the Adjudicator had not considered the issues of state protection and state acquiescence. The Adjudicator did not have to consider those issues as he did not believe the Applicant’s claim. He did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk.
44. For the same reason, there was no necessity to call for psychological or psychiatric reports or to make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights.
45. There was no evidence the Adjudicator cherry-picked information or took into account outdated cases, irrelevant information, information not officially recognised or simply hearsay.
46. There was also no evidence the Adjudicator misdirected himself in law or applied the wrong standard of proof.
47. 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
48. 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 the 14th 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 14/6/2019
Md Jafor Sheikh
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 14/6/2019
Fraser Syme, Esq.
Putative Respondent’s ref. no.:
USM 8325/17/8/363/B953
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1630/17 (formerly RBCZ 13505/16)
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 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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