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HCAL707/2018
[2019] HKCFI 531
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 707 of 2018
BETWEEN
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Titu Ahmed |
Applicant |
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John T Glass, 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 40 (DOB: 7 May 1978).
2. The Applicant claimed he would be harmed or killed by people of the Bangladesh Nationalist Party (“BNP”). He also feared the Ujjal’s family.
BNP
3. In 2000, the Applicant became an ordinary member of the Bangladesh Awami Jubo League (“BAJL”), which was the youth wing of the of the Awami League (“AL”). BAJL was in opposition to BNP.
4. In March 2006, the Applicant and his companions were on their way to a conference. They were attacked by 30 odd armed BNP members (including these five known as Monju, Pintu, Qurban, Liton and Miraz). The Applicant and many of his companions were injured.
5. The Applicant believed he was assaulted because he had refused to join BNP. He received treatment in a clinic and then went to stay in a friend’s home in a neighbouring village.
6. The BNP people falsely accused the Applicant and others assaulted them. Some BNP people and the police went to the Applicant’s home to look for him. The Applicant was not there. His father and brother were assaulted because they refused to disclose the Applicant's whereabouts.
7. The Applicant moved to live with his uncle. He later learnt his enemies were coming to get him.
Ujjal’s family
8. On 15 March 2006, the Applicant went to find his friend and ex-business partner Ujjal in order to get back the money he had lent Ujjal. A heated argument ensued. Ujjal tried to hit the Applicant with a rod but accidentally hit his father. Ujjal’s father later died. Ujjal’s mother falsely told the police that the Applicant had murdered her husband.
9. Ujjal’s family looked for the Applicant. They wanted to seek revenge. The Applicant said Ujjal’s family was affiliated with gangsters and engaged in illegal activities.
Leaving Bangladesh
10. The Applicant said his enemies continued to look for him.
11. On 12 July 2006, the Applicant left Bangladesh for China. He entered Hong Kong on 13 July 2006 as visitor and was allowed to stay for 14 days. He overstayed from 28 July 2006. He was arrested one odd months later on 18 September 2006.
12. The Applicant lodged a torture claim[1] in November 2006. His Application was refused by the Director of Immigration (“the Director”) on 26 March 2013. He appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB//NCPO” or simply “the Board”). The appeal was refused on 5 November 2013.
13. The Applicant lodged a non-refoulement claim on 13 May 2013.
14. The Applicant said his enemies were still looking for him and would kill him. The gangsters had been extorting his family for money regularly. The Bangladesh police could not offer protection. In fact, the Applicant feared the police would arrest him for the false murder allegation made by Ujjal’s family. The Applicant also said internal relocation was not viable because his enemies could locate him.
15. In the ensuing two-tier screening process here, the Director and the Board respectively refused the Applicant’s claim with respect to the remaining three applicable grounds: (i) risk of persecution,[2] (ii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iii) risk of violation of the right to life (BOR2 risk)[4].
16. On 23 April 2018, the Applicant applied for leave for judicial review.
Timeline
17. Things happened in this order: –
| 2006-7-12 |
The Applicant left Bangladesh for China. |
| 2006-7-13 |
The Applicant entered Hong Kong from China as visitor. He was permitted to stay for 14 days. |
| 2006-7-28 |
The Applicant began overstaying in Hong Kong. |
| 2006-9-18 |
The Applicant was arrested by the police. |
| 2006-11-11 |
The Applicant filed a torture claim. |
| 2013-3-26 |
The Director refused the Applicant's torture claim. |
| 2013-4-8 |
The Applicant appealed to the Board. |
| 2013-5-13 |
The Applicant lodged a non-refoulement claim. |
| 2013-11-5 |
The Board refused the Applicant's appeal on torture claim. |
| 2017-6-15 |
The Director refused the Applicant’s claim with respect to the remaining three applicable grounds: (i) persecution risk, (ii) BOR3 risk and (iii) BOR2 risk. [“the Director’s decision”] |
| 2018-2-20 |
The Applicant appeared before the Board for appeal. |
| 2018-4-13 |
The Board refused the Applicant’s appeal with respect to the remaining three applicable grounds. [“the Board’s decision”] |
| 2018-4-23 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
18. 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.
19. 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]
20. 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
21. On 26 March 2013, the Director refused the Applicant's torture claim.
22. Regarding the Applicant's subsequent non-refoulement claim, the Director in his decision dated 15 June 2017 did not accept the Applicant faced any 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 non-refoulement claim with respect to those remaining three applicable grounds.
The Board's decision
23. On 5 November 2013, the Board refused the Applicant's appeal on torture claim. [That 2013 decision is not a subject matter of the Applicant's current application for leave for judicial review. In any event, it would be time-barred now.]
24. The Applicant appealed against the Director’s 2017 decision to the Board. The Adjudicator interviewed him on 20 February 2018.
25. The Adjudicator noted the Applicant did not seek asylum as soon as practicable. The Applicant had overstayed here for one odd months before he was arrested in September 2006 and he only made his torture claim in November 2006.
26. The Adjudicator found there were contradictory and unsatisfactory features in the Applicant's allegations. For example, the Applicant was inconsistent on whether he had returned home after the March 2006 attack. The Adjudicator found it strange that the BNP people could fabricate against the Applicant when there were so many alleged onlookers as witnesses of truth. It was also odd that the other nine people allegedly accused with the Applicant had settled with the police and BNP but the Applicant alone had never sought to do the same.
27. As to the alleged threat by Ujjal’s family, the Adjudicator noted that was only added by the Applicant later in his claim. The Adjudicator found it was not a genuine claim and was only added by the Applicant to bolster his case.
28. The Adjudicator found the Applicant incredible. He did not accept the Applicant faced any persecution risk, BOR2 risk or BOR3 risk. He also found that internal relocation was available to the Applicant in any event. On 13 April 2018, the Adjudicator refused the Applicant's appeal with respect to those three applicable grounds.
Grounds of judicial review
29. 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.
30. 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.
31. The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of and/or insufficient legal representation.
32. 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. The Applicant said he was confused of what happened. He complained the Adjudicator failed to make appropriate arrangement.
33. 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
34. The hearing took place on 2 August 2018. The Applicant was in person. A Bengali interpreter provided service in court.
35. 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 had nothing to add to his grounds.
36. 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
37. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
38. 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]
39. It was wrong for the Applicant to say the Director had not screened his non-refoulement claim with respect to BOR2 risk. In his decision dated 15 June 2017, the Director considered the Applicant's non-refoulement claim with respect to the remaining three applicable grounds including BOR2 risk.
40. The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 15 June 2017. He complained there were failures by the assigned duty lawyer. However, he failed to specify what the failures were.
41. The Applicant complained there were a lack of and/or insufficient legal representation. 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.
42. 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, 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.
43. The Applicant complained he received the appeal bundle only a few days before the Board hearing.
44. 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.
45. The Director stated in his letter dated 2 August 2018 that the appeal bundle was served on the Applicant by hand on 9 February 2018. That was 11 calendar days (or 6 working days after excluding two Sundays and three Lunar New Year public holidays) prior to the Board hearing scheduled for 20 February 2018. Thus, the bundle was served on the Applicant in time.
46. 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 that the bundle was difficult or voluminous.
47. 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.
48. 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.
49. The Adjudicator had not considered the issues of state protection and state acquiescence. He did not have to as he found the Applicant failed to establish any persecution risk, BOR2 risk or BOR3 risk. For the same reason, there was no necessity for the Adjudicator 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.
50. There was no evidence the Adjudicator cherry-picked information or took into account outdated cases, irrelevant information, information not officially recognised or simply hearsay.
51. There was no evidence the Adjudicator misdirected himself in law or applied the wrong standard of proof.
52. 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
53. 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 6th day of March 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 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 6/3/2019
Titu Ahmed
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 6/3/2019
John T Glass, Esq.
Putative Respondent’s ref. no.:
USM 7595/17/6/291/B878
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 666/17 (formerly RBCZ 2001716/14)
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 11 on page 4.
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