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HCAL550/2018
[2018] HKCFI 2774
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 550 2018
BETWEEN
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Halder Lily |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
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. She is now aged 34 (DOB: 31 March 1984).
2. The Applicant claimed she would be harmed or killed by Azizul and his group, who were Muslims and affiliated with the Awami League (“AL”).
3. The Applicant said she and her family were Hindus. They supported the Bangladesh Nationalist Party (“BNP”). She had been a BNP member since 2001.
4. The Applicant had political enemies from AL. One of them was Azizul, who was the AL president in the sub-district of Rupsa. In December 2008, the two had an argument in polling activities. Azizul threatened to kill the Applicant and her child. The Applicant did not report the matter to the police.
5. Later, AL came to power. Azizul made false allegation against the Applicant’s brother Polash in February 2010. Polash was arrested by the police but later acquitted of the charges.
6. Azizul and his people often called the Applicant. They asked her to join AL or they would kill her and her family. They also humiliated her frequently.
7. In July 2010, Azizul warned the Applicant that she had to join AL within 72 hours or he would kill her and her family. The Applicant was afraid. She left her village with her family. They moved to Chittagong. She later learnt her enemies had vandalized her home.
8. The Applicant stayed in Chittagong for four years before leaving Bangladesh for Hong Kong to work as domestic helper in April 2014. However, her employment contract was terminated prematurely in July 2014. She was required to leave on or before 30 July 2014 but she did not leave accordingly. On 30 August 2014, the Applicant was arrested by the police for overstaying. She subsequently raised a non-refoulement claim.
9. The Applicant claimed internal relocation was not viable because her enemies were associated with the ruling party AL. They could easily find her in Bangladesh.
10. 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].
11. On 4 April 2018, the Applicant applied for leave for judicial review.
Timeline
12. Things happened in this order: –
| 2014-4-12 |
The Applicant arrived in Hong Kong to work as domestic helper. Her employment contract was terminated prematurely in July 2014. She was required to leave on or before 30 July 2014. She did not leave accordingly. |
| 2014-7-31 |
The Applicant began overstaying in Hong Kong. |
| 2014-8-30 |
The Applicant was arrested by the police. |
| 2014-9-2 |
The Applicant raised a non-refoulement claim. |
| 2015-6-10 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) BOR3 risk. [“the Director's decision”] |
| 2016-11-17 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2016-12-1 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2016-12-7 |
The Director refused the Applicant's claim with respect to the fourth applicable ground: BOR2 risk. [“the Director's further decision”] |
| 2017-3-7 |
The Applicant appeared before the Board for appeal. |
| 2018-3-9 |
The Board refused the Applicant's appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-4-4 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
13. 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.
14. 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]
15. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board as respondent and the Director as interested party. Thus, the Board is the putative respondent; the Director is the putative interested party.
The Director's decision
16. In his decision dated 10 June 2015, the Director did not accept the Applicant faced any torture risk, 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 three applicable grounds.
17. On 7 December 2016, the Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk.
The Board's decision
18. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 7 March 2017.
19. The Adjudicator found the even on the Applicant’s own account of events, the Applicant had not been inflicted with ill-treatment to a minimum level of severity. The complained situation was not on account of any Convention reasons, namely, race, religion, nationality, membership of a particular social group or political opinion. There was no evidence that the Applicant's enemies were public officials or acting in official capacity. There was no evidence of state involvement or state acquiescence. There was also no evidence that a consistent pattern of gross, flagrant or mass violations of human rights existed in Bangladesh. The Applicant had not reported her alleged enemies to the police. She failed to prove reasonable state protection was unavailable to her.
20. The Adjudicator found the Applicant failed to prove any torture risk, persecution risk, BOR2 risk and BOR3 risk. On 9 March 2018, he refused the Applicant's appeal with respect to all the four applicable grounds.
Grounds of judicial review
21. In Form 86 and her 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.
22. The Applicant complained she was given the appeal bundle only a few days before the Board hearing. As such, she could not well prepare for the appeal due to language problem and lack of legal representation. The Applicant said she was confused of what happened. She complained the Adjudicator failed to make appropriate arrangement.
23. The Applicant further complained the Adjudicator relied on outdated cases or information not officially recognized or simply hearsay.
Court hearing
24. The hearing took place on 12 July 2018. The Applicant was in person. A Bengali interpreter provided service in court.
25. The Applicant said a friend helped her 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.
26. The Applicant confirmed she had submitted all of her case to the Director and the Adjudicator for their consideration of her non-refoulement claim.
Discussion
27. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
28. 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]
29. The Applicant mentioned she was not legally represented during the appeal stage. She had been represented by the Duty Lawyer Service up to the Director's decision dated 10 June 2015.
30. 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 her case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
31. The Applicant raised her language problem. In the current application, a friend helped her to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant was assisted by qualified interpreters while she 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 her language problem.
32. The Applicant complained she received the appeal bundle on 1 March 2018, only six days before the Board hearing scheduled for 7 March 2018.
33. 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.
34. The Applicant received the appeal bundle 6 calendar days (or 5 working days) prior to the Board hearing. The bundle was served on the Applicant in time.
35. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of her claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.
36. A few days were certainly 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 she really needed more time to prepare for her appeal. She had not complained to the Adjudicator or asked for adjournment during the appeal hearing.
37. The Applicant said she answered all the questions honestly in the Board hearing.[11] That would mean she knew well what was asked and how to answer. She was not confused.
38. The Applicant complained the Adjudicator relied on outdated cases or information not officially recognized or simply hearsay. The Applicant failed to be specific and there was no evidence of such complaint.
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 her 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
40. The Applicant's complaints are not reasonably arguable. She has no realistic prospects of success in the sought judicial review. I therefore refuse to grant her leave for the review.
Dated 24th day of December 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
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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 24/12/2018
Halder Lily
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 24/12/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 1751/15/6/137/B237
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 25/15 (formerly RBCZ 3001674/14)
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] 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 8 on page 4.
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