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HCAL158/2018
[2018] HKCFI 2335
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 158 of 2018
BETWEEN
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Rahman Mohammad Hafizur |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office
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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 25 (DOB: 10 December 1992).
2. The Applicant claimed he would be harmed or killed by people of the Awami League (“AL”) and the Chhatra League (“CL”). [CL was the student wing of AL.]
3. The Applicant said he supported Chhatra Shibir (“CS”), which was the student wing of Jamaat-e-Islami (“JI”). JI was an ally of the Bangladesh Nationalist Party (“BNP”). The majority of people in the Applicant's village supported AL. AL was the ruling party in Bangladesh at the material times.
4. After the Applicant had joined CS for a year, he was appointed as the Campaign/Publicity Secretary by Athaur, the President of CS in the Applicant's college. The Applicant claimed he had successfully invited many students to join CS. That made the CL people jealous.
5. In early 2012, Athaur was arrested for some false allegations made against him by his enemies. He was tortured by the police.
6. In May 2012, 50 to 60 CS members gathered outside the college to protest. Some armed CL people and the police arrived. They beat up the protesters until members of BNP’s student wing (“Chhatra Dal”) came to their rescue. The Applicant was injured and was hospitalized for one day. Some of his friends were hurt severely. Yet, they dared not complain to the police for fear of more troubles and detention. They thought the police would not take any complaint against people related to AL.
7. When the Applicant was heading home after leaving the hospital, his father told him on the phone that some AL people had come to look for him. The Applicant then fled to his aunt’s place. In May/June 2012, he moved further to his maternal grandfather’s home. He returned home a month later and hid himself from the enemies.
8. The Applicant said the situation got worse in 2013. The Bangladesh government banned JI. AL arrested, tortured and killed JI members including some leaders of JI and CS. Two friends of the Applicants were arrested in April 2013. They were CS members. They were accused of false allegations. The police tortured and detained them.
9. The Applicant claimed he was targeted by his enemies because he refused to join AL and because he could attract others to join CS. Fearing his enemies would find him, the Applicant moved to Dhaka in April 2013. He finally left Bangladesh on 17 May 2013 for China and entered Hong Kong illegally on 28 May 2013. He did not seek non-refoulement protection immediately.
10. The Applicant was told by his family that the situation in Bangladesh had worsened. His enemies were still looking for him.
11. The Applicant said state protection and internal relocation were not available because AL was in power. He alleged his enemies could find him anywhere in Bangladesh.
12. The Applicant was arrested on 12 June 2013 by the police for illegal remaining. He raised a torture claim[1] on 20 August 2013. The Director of Immigration (“the Director”) refused his torture claim on 24 October 2013. There was no evidence that the Applicant had appealed against that decision.
13. The Applicant later raised a non-refoulement claim on 31 October 2013.
14. On 28 July 2017, the Director refused the Applicant’s claim with respect to the remaining three applicable grounds: risk of persecution[2], risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and risk of violation of the right to life (BOR2 risk)[4].
15. The Applicant appealed against the Director's 2017 decision to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”).
16. On 25 January 2018, the Board refused the Applicant’s claim with respect to these three applicable grounds: persecution risk, BOR3 risk and BOR2 risk.
17. On 2 February 2018, the Applicant applied for leave for judicial review.
Timeline
18. Things happened in this order: –
| 2013-5-17 |
The Applicant left Bangladesh for China. |
| 2013-5-28 |
The Applicant entered Hong Kong from China illegally |
| 2013-6-12 |
The was arrested by the police for illegal remaining. |
| 2013-8-20 |
The Applicant lodged a torture claim. |
| 2013-10-24 |
The Director refused the Applicant's torture claim. [“the Director's 2013 decision”] |
| 2013-10-31 |
The Applicant raised a non-refoulement claim. |
| 2017-7-28 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: persecution risk, BOR3 risk and BOR2 risk. [“the Director's 2017 decision”] |
| 2017-8-9 |
The Applicant appealed against the Director's 2017 decision. |
| 2017-10-27 |
The Applicant appeared before the Board for appeal. |
| 2018-1-25 |
The Adjudicator refused the Applicant’s claim with respect to these three applicable grounds: persecution risk, BOR3 risk and BOR2 risk. [“the Board's decision”] |
| 2018-2-2 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
19. 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.
20. 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]
21. 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.
22. The Adjudicator was not acting in her personal capacity. She 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
23. On 24 October 2013, the Director refused the Applicant's torture claim. There was no evidence that the Applicant had appealed against that decision.
24. The Applicant subsequently raised a non-refoulement claim. In his decision dated 28 July 2017, the Director 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 the remaining three applicable grounds: persecution risk, BOR2 risk and BOR3 risk.
The Board's decision
25. In relation to the Director’s 2017 decision on persecution risk, BOR2 risk and BOR3 risk, the Applicant appealed to the Board on 9 August 2017.
26. The Adjudicator interviewed the Applicant on 27 October 2017. She found there were inconsistent, unconvincing and implausible features in the Applicant's allegations.[6] For example, the Applicant was inconsistent on the time he became the Publicity Secretary of CS in his college; whether the person (Athaur) who gave him such post was the President of CS in the college or the College Secretary. The Applicant was not able to say in details how he recruited people to join CS. The Adjudicator found the Applicant's saying that he did not have to pay anything to CS was inconsistent with the country-of-origin information ("COI"). The Adjudicator also found it implausible that JI had been banned before the Applicant left Bangladesh. The Applicant left Bangladesh in May 2013 but COI showed JI was only declared unlawful by the Bangladesh court in August 2013. The Adjudicator concluded the Applicant was not a truthful witness. She did not accept the Applicant's claim.
27. On 25 January 2018, the Adjudicator refused the Applicant's appeal with respect to these three applicable grounds: persecution risk, BOR3 risk and BOR2 risk. [7]
Grounds of judicial review
28. In his affirmation, the Applicant complained the Adjudicator unlawfully fettered her 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.
29. The Applicant accused the Adjudicator failed to make sufficient inquiry; failed to consider updated or relevant 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.
30. The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of and/or insufficient legal representation.
31. 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.
32. 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
33. In Form 86, the Applicant requested a hearing. The hearing took place on 29 June 2018. The Applicant was in person. A Bengali interpreter provided service in court.
34. 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.
35. 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
36. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
37. 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’.[8] 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.” [9].
38. It was wrong for the Applicant to say the Director had not screened his non-refoulement claim with respect to BOR2 risk. The Director had screened the Applicant's claim with respect to torture risk in 2013. In his further decision dated 28 July 2017, the Director considered the remaining three applicable grounds including BOR2 risk.
39. The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 28 July 2017. The Applicant complained there were failures by the assigned duty lawyer. However, he failed to specify what the failures were.
40. 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.[10] 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.
41. 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. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling English documents.
42. The Applicant complained he received the appeal bundle only a few days before the Board hearing.
43. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[11] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[12], 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.
44. The Director stated in his letter dated 29 June 2018 that the appeal bundle was served on the Applicant on 20 October 2017. That was 7 calendar days (or 6 working days) prior to the Board hearing. Thus, the bundle was served on the Applicant in time.
45. 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.
46. 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.
47. The Applicant said he answered all the questions honestly in the Board hearing.[13] That would mean he knew well what was asked and how to answer. He was not confused.
48. The Adjudicator had not considered the issues of state protection and state acquiescence. She did not have to as she had found the Applicant failed to establish any real persecution risk, BOR2 risk or BOR3 risk. For the same reason, there was no necessity to call 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.
49. There was no evidence that the Adjudicator had cherry-picked information or taken into account outdated cases/irrelevant information/information not officially recognised or simply hearsay.
50. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She 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 Applicant's case. She considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.
Conclusion
51. 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 29th day of October 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 29/10/2018
Rahman Mohammad Hafizur
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 29/10/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8092/17/8/130/B925
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1372/17 (formerly RBCZ 2002585/14)
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] The Board's decision, paras 50-63.
[7] Ibid., paras 64-67.
[8] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[9] CACV 219/2018 [2018] HKCA 570, para 14(1).
[10] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[11] 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.
[12] 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.
[13] The Applicant's affirmation, Point 5 on page 23.
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