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HCAL1111/2017
[2018] HKCFI 1324
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1111 of 2017
BETWEEN
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Hossen Kazi Mahabub |
Applicant |
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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 Bangladesh national. He is now aged 36 (DOB: 8 October 1981).
2. The Applicant claimed that he would be harmed or killed by the Awami League (“AL”) because he supported the Bangladesh Nationalist Party (“BNP”). The Applicant also feared the Bangladesh police because of some false accusations.
3. The Applicant said he joined Jatiyatabada Chatra Dal in 1999. It was a student wing of BNP.
4. In 2004, an AL leader falsely accused some BNP members including the Applicant of attacking her motorcade. The police tried to arrest the Applicant. The Applicant then fled to Dhaka.
5. In 2008, AL came into power. They exerted more pressure on BNP members. The police went to the Applicant’s home more often to find him. Sometimes the police were with the AL people. The AL people threatened the Applicant’s family to hand over the Applicant. They said they would beat him up and then hand him to the police. They even threatened to kill the Applicant.
6. In 2009, the Applicant was elected vice president of the district branch of Jatiyatabadi Jubo Dal, which was the youth wing of BNP.
7. One day in 2009, some AL people came to the Applicant’s house and threatened the Applicant’s mother. Some journalists got information and published the news in a local newspaper. Someone had reported the matter to the police. However, the police refused to help.
8. In 2010, an AL leader falsely accused some BNP members (including the Applicant) of attacking his car. Although the Applicant was in Dhaka, he knew little of the alleged incident. Fearing the AL people could get him, the Applicant changed his job and moved to live in another place in Dhaka.
9. In 2012, the Applicant and some BNP members were further accused of setting fire to a truck.
10. In 2013, some ten to twelve AL people came to the Applicant’s house. The Applicant’s mother refused to tell them where the Applicant was. Some AL peopled then threw a cocktail bomb to the courtyard. They threatened the Applicant’s family not to report to the police or they would be killed.
11. In February 2014, some AL people looted the shops operated by the Applicant’s brothers. They threatened the brothers with weapons and forced them to disclose the Applicant's whereabouts. Those people again threw a cocktail bomb at the Applicant’s house causing damage. Fortunately, no one was seriously injured.
12. Several days later, some AL people attacked the Applicant’s father and younger brother with weapons after the latter refused to disclose the whereabouts of the Applicant. The Applicant’s father was badly injured. The AL people threatened that they would kill the Applicant.
13. The Applicant’s family then moved away to live with their relatives in Dhaka.
14. On 3 June 2014, the Applicant left Bangladesh. He arrived in Hong Kong the next day. However, he did not seek protection immediately upon his arrival. He was arrested by the police on 9 July 2014. On 12 July 2014, the Applicant lodged a non-refoulement claim.
15. The Applicant claimed his family members told him the police were still looking for him. He did not believe the Bangladesh police would help him because AL was in power. He also thought the Bangladesh government would not handle his case properly due to political influence by AL.
16. The Applicant did not think internal relocation was possible. He claimed the AL people had extensive networks and could find him easily in the country.
17. 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].
18. On 20 December 2017, the Applicant applied for judicial review.
Chronology of events
19. Things happened in this order: –
| 2014-6-3 |
The Applicant left Bangladesh. |
| 2014-6-4 |
The Applicant arrived in Hong Kong as a visitor. He was allowed to stay until 18 June 2014. He overstayed after that date. |
| 2014-7-9 |
The Applicant was arrested by the police. |
| 2014-7-12 |
The Applicant filed a non-refoulement claim. |
| 2016-4-21 |
The Director interviewed the Applicant. |
| 2016-6-15 |
The Director interviewed the Applicant again. |
| 2016-9-1 |
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”] |
| 2017-7-7 |
The Director invited the Applicant to submit additional facts for the consideration of the fourth applicable ground: life risk (BOR2 risk). |
| 2017-7-21 |
The Applicant failed to submit additional facts by deadline or thereafter. |
| 2017-8-2 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director’s further decision”] |
| 2017-11-1 |
The Applicant appeared before the Board for appeal. |
| 2017-12-8 |
The Board dismissed the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2017-12-20 |
The Applicant applied for leave for judicial review. |
Respondent/ Interested party
20. 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 complaint on a rehearing basis.
21. In form 86, the Applicant named the Board as respondent and the Director as interested party. The Board is the putative respondent; the Director is the putative interested party.
Director of Immigration (the Director)
22. In the Director’s decision dated 1 September 2016, the officer did not expressly say the Applicant was incredible. However, he found there were inconsistent, implausible and unconvincing features in the Applicant’s allegations.
23. Even on the strength of the Applicant’s claim, the officer considered the level of risk of harm from the AL people against the Applicant was low.
24. The officer was aware there were reports of widespread impunity in the security forces and ineffectiveness or corruption in the police force. However, there was objective country-of-origin information (“COI”) showing the Bangladesh government had taken measures to improve their effectiveness and to monitor the police. The officer considered reasonable state protection was available to the Applicant. Reasonable internal relocation was also viable.
25. The officer did not accept there was any real torture risk, persecution risk and BOR3 risk that warranted non-refoulement protection. He refused the Applicant’s claim with respect to those three applicable grounds.
26. Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of life risk (BOR2 risk). However, the Applicant did not respond by the deadline or thereafter.
27. In the Director’s further decision dated 2 August 2017, the immigration officer considered that the Applicant failed to establish there was a personal and real risk of his rights under the Hong Kong Bill of Rights being violated (including the 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)
28. The Adjudicator found there were many inconsistent and implausible features in the Applicant's claim. He disbelieved the Applicant. The Adjudicator considered that the Applicant faced no real risk that warranted non-refoulement protection.
29. On 8 December 2017, the Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR 2 risk.
Grounds of judicial review
30. In Form 86 and his affirmation, the Applicant complained he was given the appeal bundle only a few days before the appeal hearing. As such, he did not have sufficient time to prepare for the appeal in light of his language problem and lack of legal representation. The Applicant said he was confused during the appeal hearing. He complained the Adjudicator failed to make appropriate arrangements in relation to the service of the hearing bundle.
31. The Applicant also complained that the Adjudicator relied on outdated cases and information not officially recognised or simply hearsay.
Court hearing
32. In Form 86, the Applicant requested a hearing. The hearing took place on 1 June 2018. The Applicant was in person. A Bengali interpreter rendered interpretation service in court.
33. The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were there. He could not elaborate or specify his complaints.
34. The Applicant confirmed he had related all to the Adjudicator and the Director 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 complained that he received the appeal bundle only a few days before the appeal hearing.
38. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[6] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[7], 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.
39. The Applicant said he received the appeal bundle 8 days prior to the appeal hearing scheduled on 1 November 2017 (Wed). In that 8-day period, the were 6 working days (excepting a Sunday and a public holiday on 28 October 2017) prior to the appeal hearing. Thus, the bundle was served on the Applicant in time.
40. 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 by the immigration officer.
41. In court, the Applicant admitted he had a friend to prepare Form 86 and the affirmation for him. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents for him. I am sure that was the case at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling documents.
42. A few days’ time certainly was not a long period. However, the Applicant's case was not difficult and there was no evidence to show the appeal bundle was difficult or voluminous. A few days could 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 the appeal. There is no evidence to show he had so complained to the Adjudicator or asked for adjournment during the appeal hearing. There is also no evidence to show the Applicant was confused as to what happened in the appeal before the Adjudicator.
43. The Applicant mentioned he was not legally represented then. He had been represented by the Duty Lawyer Service up to the Director rendered his decision on 1 September 2016. The Applicant failed to show this court how his case would be undermined or prejudiced by the lack of further legal representation only in the later stages of the screening process. The Court of Appeal repeatedly stated that an applicant of non-refoulement claim did not have an absolute right to free legal representation at all stages of the proceedings.[8]
44. The other complaints raised by the Applicant are vague. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find none of the Applicant’s complaints can stand.
45. 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. 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’s report showed he was acquainted with the facts of the Applicant's case. He considered the Applicant’s claim carefully and applied the law correctly. He was entitled to render those findings, conclusions and decisions which were all reasonable. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
46. The Director is an interested party. I have also reviewed the Director’s decision plus further decision under ‘rigorous examination and anxious scrutiny’. I am satisfied his findings, conclusions and decisions were not Wednesbury unreasonable. What has been said of the Adjudicator in para. 45 above is true of the Director too. The Director had also achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
47. 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 22nd 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 22/6/2018
Hossen Kazi Mahabub
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 22/6/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4830/16/9/209/B645
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2530/15 & RBCZ-9002688-17 (formerly RBCZ-2409-14)
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] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Bboard pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.
[7] 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.
[8] CACV 284/2017 Re Paswan Shibu Lal, para 21.
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