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HCAL232/2018
[2018] HKCFI 2571
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 232 of 2018
BETWEEN
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Nabin Fakir |
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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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 national of Bangladesh. He is now aged 29 (DOB: 17 March 1989).
2. The Applicant claimed he would be harmed or killed by the Delawar family and their associates.
3. The Applicant said he started to support the Awami League (“AL”) in 2009 when he was 18 years old. The Bangladesh Nationalist Party (“BNP”) was more powerful and was in opposition to AL.
4. In early 2012, there was an election in Bangladesh. Delawar represented BNP while the AL candidate was Halder. Halder instructed the Applicant and a few others to kill Delawar. They did.
5. A few days later, the Applicant learned from other villagers that one of the men who had gone with him to kill Delawar was beaten up by the Deceased’s friends and family members. The Applicant feared for his own safety so he left his village to stay with a relative for about two months.
6. While the Applicant was staying away from home, he learned the police and Delawar’s son had come to look for him. The Applicant also learned that Delawar’s son threatened to kill those who murdered his father.
7. The Applicant later moved to Dhaka and stayed there for another two months. He left Bangladesh for China in June 2012. When he was in China, he heard from his sister that Delawar’s son was still looking for him.
8. After staying in China for more than a year, the Applicant sneaked into Hong Kong on 24 September 2013. He was arrested by the police on 15 October 2013. He lodged a non-refoulement claim on 19 October 2013.
9. The Applicant had no contact with his family in Bangladesh after he had come to Hong Kong.
10. The Applicant did not trust the Bangladesh police. He believed they would not protect him. The police were in fact after him for the murder of Delawar.
11. The Applicant did not think internal relocation was viable. He did not know where he could live in Bangladesh.
12. 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].
13. On 13 February 2018, the Applicant applied for leave for judicial review.
Timeline
14. Things happened in this order: –
| Jun 2012 |
The Applicant left Bangladesh for China. |
| 2013-9-24 |
The Applicant sneaked into Hong Kong from China. |
| 2013-10-15 |
The Applicant was arrested by the police. |
| 2013-10-19 |
The Applicant raised a non-refoulement claim. |
| 2015-11-20 |
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”] |
| 2017-6-6 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-6-20 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-10-3 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [“the Director’s further decision”] |
| 2018-1-18 |
The Applicant appeared before the Board for appeal. |
| 2018-2-7 |
The Board refused the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-2-13 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
15. 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.
16. 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]
17. 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.
18. 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.
The Director's decision
19. In the Director's decision dated 20 November 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.
20. On 3 October 2017, the Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk.
The Board's decision
21. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 18 January 2018.
22. The Adjudicator found the Applicant knew little of AL. He did not accept the Applicant was a supporter of AL.[6] The Applicant could not tell the Adjudicator in which month of 2012 he killed Delawar. The Adjudicator considered it was incredible that the Applicant could not remember the month if he really killed Delawar. He did not believe the Applicant’s claim.[7] The Adjudicator did not believe the Bangladesh police were looking for the Applicant. [8] He found the Applicant had concocted his non-refoulement claim.[9]
23. The Adjudicator did not accept the Applicant faced any risk that warranted non-refoulement protection. On 7 February 2018, he refused the Applicant’s appeal with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 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 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 and applied the wrong standard of proof.
26. The Applicant complained there were failures by the assigned duty lawyer at first instance resulting in a lack of and/or insufficient legal representation.
27. The Applicant also 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.
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 on 6 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 affirmation. The Applicant had nothing to add.
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’.[10] 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.” [11]
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 further decision dated 3 October 2017 was on BOR2 risk. The Applicant failed to submit additional facts for the Director's consideration. The Director was entitled to consider the Applicant’s claim with respect to BOR2 risk without holding further interview. The Director’s further decision must be read in conjunction with his earlier decision dated 20 November 2015, where there was a detailed analysis of the Applicant’s case.
35. The Applicant complained there were failures by the assigned duty lawyer at first instance. The Applicant, however, failed to provide particulars.
36. The Applicant complained there was a lack of and/or insufficient legal representation. He had been represented by the Duty Lawyer Service up to the Director's decision dated 20 November 2015.
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.[12] 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, 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 when he 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 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’[13] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[14], 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.
41. The Director stated in his letter dated 12 September 2018 that the appeal bundle was sent to the Applicant on 12 January 2018. That was 6 calendar days (or 5 working days) prior to the Board hearing scheduled for 18 January 2018. Thus, the bundle was served on the Applicant in time.
42. 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.
43. 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.
44. The Applicant said he answered all the questions honestly in the Board hearing.[15] That would mean he knew well what was asked and how to answer. He was not confused.
45. The Adjudicator had not considered the issues of state protection and state acquiescence. He did not have to as he disbelieved the Applicant's claim and found the Applicant failed to establish any risk that warranted non-refoulement protection. For the same reason, there was no need 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.
46. There was no evidence the Adjudicator cherry-picked information or took into account outdated cases/irrelevant information/information not officially recognised or simply hearsay.
47. There was also no evidence the Adjudicator applied the wrong standard of proof.
48. 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 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
49. 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 11th 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 11/12/2018
Nabin Fakir
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 11/12/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2665/15/11/177/B348
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1427/15 & RBCZ 9002186/17 (formerly RBCZ 697/14)
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] The Board's decision, paras 45-46.
[7] Ibid., paras 47-48.
[8] Ibid., para 51.
[9] Ibid., para 52.
[10] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[11] CACV 219/2018 [2018] HKCA 570, para 14(1).
[12] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[13] 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.
[14] 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.
[15] The Applicant's affirmation, Point 4 on page 20.
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