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HCAL1150/2017
[2018] HKCFI 1180
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1150 of 2017
BETWEEN
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Islam Rafiqul |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
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 Bangladesh national. He is now aged 34 (DOB: 1 June 1984).
2. The Applicant claimed he would be harmed or killed by a local gang of the Awami League (“AL”) because he refused to quit his own party Jatiotabadi Chatra Dal (“JCD”) to join AL and he failed to give them extortion money in lieu of the switch. The Applicant claimed AL was the ruling party in Bangladesh and its members were engaged in extortion. The police would listen to AL leaders.
3. The Applicant said he and his family supported the Bangladesh Nationalist Party (“BNP”). JCD was the student wing of BNP. In 2012, the Applicant became the General Secretary of JCD in the Sitlia Union area.
4. The Applicant said that in April 2013, 10 - 12 armed AL members including someone called Tutul came to threaten him. Tutul was the president of the Bangladesh Chatra League (“BCL”), which was a student wing of AL. Tutul and his associates told the Applicant to leave BNP to join AL or to pay them 500,000 Bangladesh Takas. The Applicant reported the matter to the police but they refused to take his complaint.
5. The Applicant said the AL gang came to repeat their demands three weeks later. He refused and was beaten up. Those men threatened to kill the Applicant if he would not pay their demand. The police again refused to intervene.
6. In August 2013, the Applicant was extorted money by Tutul and three other men. They again threatened to kill him if he would not accede to their demand.
7. AL won the election in Bangladesh in January 2014. They ruled the country in a high-handed way. BNP members were attacked and killed.
8. In February 2014, the AL gang went to the Applicant’s home. They threatened to kill the Applicant. The Applicant fled to a friend’s place and then to Dhaka.
9. The Applicant received threatening calls from Tutul. Tutul said he knew where the Applicant was and that the AL people were coming to get him.
10. The Applicant later left Dhaka for Rajshahi, where he stayed with his aunt. However, he still received threatening calls.
11. On his father’s advice, the Applicant left Bangladesh for China on 14 August 2014. A few days later, he came to Hong Kong and sought non-refoulement protection.
12. The Applicant did not think the Bangladesh authorities would protect him because they were influenced by AL, which ruled the country.
13. The Applicant also did not think internal relocation was viable because his AL enemies had political networks. They could find him anywhere in Bangladesh.
14. In the ensuing two-tier screening process here (“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].
15. On 28 December 2017, the Applicant applied for leave for judicial review.
Chronology of events
16. Things happened in this order: –
| 2014-8-14 |
The Applicant left Bangladesh for China. |
| 2014-8-17 |
The Applicant entered Hong Kong illegally and was arrested by the police. |
| 2014-8-20 |
The Applicant lodged a non-refoulement claim. |
| 2016-6-15 |
The Director held a screening interview with the Applicant. |
| 2016-7-20 |
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”] |
| 2017-7-3 |
The Director invited the Applicant to submit additional facts for the consideration of life risk (BOR2 risk). |
| 2017-7-17 |
The Applicant failed to submit any additional facts by deadline or thereafter. |
| 2017-7-21 |
The Director refused the Applicant's claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director's further decision”] |
| 2017-11-21 |
The Applicant appeared before the Board for appeal. |
| 2017-12-21 |
The Adjudicator refused Applicant’s claim with respect to the four applicable grounds. |
| 2017-12-28 |
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 Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Adjudicator as respondent and the Director as interested party.
19. The Adjudicator was not acting in his personal capacity. He represented the Board. In court, the Applicant agreed to change to sue the Board in lieu of the Adjudicator. Thus, the Board is the putative respondent; the Director is the putative interested party.
Director of Immigration (the Director)
20. In the Director’s decision dated 20 July 2016, the immigration officer did not make specific finding on the Applicant's credibility. But even on the strength of the Applicant's claim, the officer considered the level of risk against the Applicant by his enemies was low. The Applicant had not been inflicted with ill-treatment to a minimum level of severity.
21. The officer found that the Applicant’s feared situation was not instigated by the state or officials. He did not accept there was state acquiescence.
22. The officer noted there were shortcomings in the Bangladesh administration including the police force but there were also reforms ongoing in the country. He considered reasonable state protection was available to the Applicant. Reasonable internal relocation was also viable.
23. The officer did not accept the Applicant had real BOR3 risk or well-founded persecution risk or any torture risk that warranted non-refoulement protection. He refused the Applicant’s claim with respect to these three applicable grounds: torture risk, persecution risk, and CIDTP risk (BOR3 risk).
24. 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 17 July 2017 or thereafter.
25. In the Director’s further decision dated 21 July 2017, the officer considered the Applicant failed to establish a personal and real risk of his rights under the HKBOR being violated (including right to life under BOR2). He refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk).
TCAB/NCPO (the Board)
26. In his decision dated 21 December 2017, the Adjudicator set out the facts and the law clearly. He was alive to the issues of the Applicant’s claim. The Adjudicator made inquiry with the Applicant. He found the Applicant's evidence vague, inconsistent and confusing. He did not accept the Applicant’s claim as credible. The Adjudicator found the Applicant failed to prove any risk that warranted non-refoulement protection. In light of such finding, the Adjudicator did not go on to discuss the issues of state protection and internal relocation.
27. The Adjudicator refused the Applicant’s claim with respect to the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk).
Grounds of judicial review
28. In his affirmation dated 28 December 2017, the Applicant listed his complaints under these headings: procedural impropriety/unfairness, irrationality and procedural impropriety. It would be more comprehensible to narrate his complaints as follows rather than to refer to the individual grounds.
29. The Applicant complained the Adjudicator failed to carry out sufficient research and inquiry into the condition of Bangladesh; failed to have regard to relevant and up-to-date country of origin information (“COI”); placed weight on irrelevant information or outdated information or information not officially recognised or simply hearsay; placed weight on irrelevant considerations and incorrect/inaccurate facts; failed to consider facts and inferences that were favourable to the Applicant; cherry-picked information; failed to call for psychological and psychiatric reports; 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 consider properly the issue of state protection and state acquiescence; applied the wrong standard of proof; misdirected in law and rendered unreasonable decisions.
30. The Applicant also complained about lack of sufficient legal representation. He said the Adjudicator failed to take into account he was a self-represented claimant in the appeal. He also complained the hearing bundle was only served on him a few days before the appeal hearing. He said he did not have enough time to obtain language assistance to prepare for the appeal. He was thus confused as to what happened during the appeal.
31. Although the Applicant did not name the Director as a respondent, he did complain the Director failed to assess his claim with respect to BOR2 risk.
Court hearing
32. The Applicant requested a hearing. The hearing took place on 24 May 2018. A Bengali interpreter provided assistance in court.
33. The Applicant said he knew only a little English. A friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. He could not elaborate on any of those grounds or give specifics. He merely said he was not satisfied with the decisions of the Director and the Adjudicator. He said Bangladesh had many political troubles and he could not go back there. He said internal relocation was not possible for him.
34. The Applicant confirmed he had submitted all the information and materials he had to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
35. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
36. 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’.[5]
37. The Applicant has filed a barrage of complaints. Most of them are vague. I shall first deal with the more specific ones.
38. The Applicant complained the Director had not properly screened his claim on BOR2 risk. That is not true. The Director had invited the Applicant to submit additional facts for the consideration on BOR2 risk but the Applicant failed to do so. The Director then rendered his decision on 21 July 2017. That further decision should be read in conjunction with the Director's earlier decision dated 20 July 2016. The Director had carefully and fully considered the Applicant’s claim by those two decisions, which dealt with all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR2 risk.
39. The Applicant complained that he had not been given sufficient legal assistance. He had been represented by the Duty Lawyer Service up to the Director's decision rendered on 20 July 2016. The Applicant failed to show this court how his claim was prejudiced or undermined by the lack of legal representation only in the later stages of his claim. 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.[6]
40. The Applicant accused the Adjudicator of failing to evaluate and make a finding as to whether there existed in Pakistan a consistent pattern of gross, flagrant or mass violations of human rights. The Adjudicator found the Applicant's claim incredible. In light of such finding, it was not necessary for the Adjudicator to go on to discuss further issues such as human rights violation, state acquiescence, state protection, internal relocation and so on.
41. The Applicant also complained the Adjudicator did not call for psychological and psychiatric reports. However, the Applicant failed to justify there was such a need. In fact, the Adjudicator disbelieved his claim.
42. The Applicant further complained that he did not have sufficient time to prepare for the appeal before the Adjudicator. He also said he was confused during the hearing. I have reviewed the Adjudicator’s report dated 21 December 2017. There is no evidence that the Applicant had complained he was short of time for preparation or he was confused during the hearing. He had not requested the Adjudicator for adjournment. In fact, he answered the Adjudicator’s questions. I do not accept the Applicant had no time to prepare for the appeal or that he was confused during the appeal hearing.
43. The other complaints lacked specifics. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find none of the Applicant's complaints was substantiated.
44. In my judgement, the Adjudicator had proper basis for his findings, conclusions and decisions which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Adjudicator, who 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’s report showed he was acquainted with the facts and applied the law correctly. He considered the Applicant's case carefully. He was entitled to render those findings, conclusions and decisions which were all reasonable. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
45. The Director is an interested party. I have also reviewed his decisions under ‘rigorous examination and anxious scrutiny’. What has been said of the Adjudicator in paragraph 44 above is also true of the Director. His findings, conclusions and decisions were not Wednesbury unreasonable. He had also adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
46. 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 the review.
Dated 5th day of June 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 5/6/2018
Islam Rafiqul
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 5/6/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4298/16/8/17/B587
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 677/16 & RBCZ 9002603/17 (formerly RBCZ 2705/14)
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] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[6] CACV 284/2017 Re: Paswan Shibu Lal, para 21.
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