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HCAL327/2018
[2018] HKCFI 2416
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 327 of 2018
BETWEEN
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Munna Mohammad |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
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 37 (DOB: 7 February 1981).
2. The Applicant claimed he would be harmed or killed by people of the Awami League (“AL”).
3. The Applicant said he joined the Bangladesh Nationalist Party (“BNP”) in 2012 and actively canvassed support for the party. Because of his participation in BNP activities, he became a target of AL.
4. In late 2013, some AL people confronted the Applicant and demanded him to leave BNP to join AL. The Applicant refused. The AL people threatened him that dire consequences would ensue.
5. Several days later, 20-30 armed AL people came to the Applicant’s shop. They again demanded the Applicant to join AL. The Applicant refused. Those men then vandalized the Applicant's shop. They threatened to kill the Applicant if he continued to refuse to join AL. Then they left.
6. The Applicant sought assistance from the BNP secretary in his area. The secretary could not help. He only suggested the Applicant should leave Bangladesh to avoid his enemies.
7. The Applicant learnt his enemies had filed three false cases against him and other BNP members. He did not know the details but he decided to leave his home town.
8. The Applicant took shelter in his friend’s place. In February/March 2014, he was informed by his wife that some AL people came to look for him with the police. The AL people threatened to kill the Applicant if they found him while the police said they would arrest the Applicant once they located him.
9. The Applicant left Bangladesh for China on 10 July 2014. He said he had to bribe the immigration officers in order to leave the country since his enemies had filed false allegations against him to the authorities.
10. The Applicant was arrested by the police in Hong Kong on 15 July 2014. He subsequently lodged a non-refoulement claim.
11. In Hong Kong, the Applicant learnt from his family that the AL people and the Bangladesh police were still looking for him.
12. The Applicant said internal relocation was not viable as AL was powerful and had members all over the country. The police would also arrest him because of the false allegations made by his enemies. The Applicant did not believe he could get state protection from the Bangladesh authorities.
13. 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].
14. On 2 March 2018, the Applicant applied for leave for judicial review.
Timeline
15. Things happened in this order: –
| 2014-7-10 |
The Applicant left Bangladesh for China. |
| 2014-7-15 |
The Applicant was arrested by the police in Hong Kong. He claimed he just entered Hong Kong. |
| 2014-7-19 |
The Applicant lodged a non-refoulement claim. |
| 2017-9-27 |
The Director refused Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR2 risk. [“the Director's decision”] |
| 2017-12-7 |
The Applicant appeared before the Board for appeal. |
| 2018-2-15 |
The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds [“the Board's decision”] |
| 2018-3-2 |
The Applicant applied for leave for judicial review. |
Respondents
16. 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.
17. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.
18. 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] The Applicant cannot seek leave for judicial review against the Director's decision. Therefore, I shall deal with his application in relation to the Board's decision only.
The Director's decision
19. The Director did not accept the Applicant faced any risk that warranted non-refoulement protection. He also considered reasonable state protection and internal relocation were available to the Applicant. On 27 September 2017, the Director refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, life risk, BOR2 risk and BOR3 risk.
The Board's decision
20. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 7 December 2017.
21. The centrepiece of the Applicant’s claim is that he was a BNP member. However, the Adjudicator found the Applicant was unable to tell much of BNP. The Applicant was also evasive on matters relating to BNP membership. He said he was not required to pay any membership fee but that was contrary to independent country-of-origin information ("COI"). The Adjudicator found the Applicant was also ambiguous about the frequency of his attending the BNP meetings and canvassing for the party. The Adjudicator did not accept the Applicant was a member of BNP or that he had actively participated in the party’s activities. She did not accept the Applicant was targeted by AL or that he faced any real risk which warranted non-refoulement protection.[6]
22. On 15 February 2018, the Adjudicator refused the Applicant's claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk.
Grounds of judicial review
23. In his affirmation, the Applicant complained against the Director and the Adjudicator. As said in paragraph 18 above, the Applicant cannot seek leave for judicial review against the Director's decision. Therefore, I shall deal with his application in relation to the Board's decision only.
24. The Applicant complained the Adjudicator failed to inform him that his claim would be assessed against COI and ‘other materials’; failed to properly consider COI relating to human rights condition in Bangladesh and state protection; failed to consider the concept of extended state acquiescence; failed to consider his fear and failed to give reasons for her decision.
Court hearing
25. The Applicant requested a hearing. The hearing took place on 4 July 2018. The Applicant was in person. A Bengali interpreter provided service in court.
26. The Applicant said all the grounds of judicial review were in the affirmation. He had had nothing to add to those grounds.
27. The Applicant also confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
28. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
29. 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’.[7] 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.” [8].
30. The Applicant complained the Adjudicator failed to inform him that his claim would be assessed against COI and ‘other materials’.
31. The Adjudicator did put to the Applicant such COI relating to BNP membership for the Applicant to respond.[9] She was entitled to do so in order to find out whether the Applicant was really a BNP member, which was the centrepiece of his claim.
32. The Applicant mentioned ‘other materials’ in his complaint. He failed to specify what they were.
33. The Applicant complained the Adjudicator failed to give reasons for her decision. The Adjudicator had assessed the Applicant's claim in details and explained clearly why she did not accept his claim.
34. The Adjudicator had proper basis to find the Applicant's allegations were vague and untruthful. Her decision was not Wednesbury unreasonable. She did not accept the Applicant had the fear as he claimed. In light of such finding, the Adjudicator really need not go on to consider those issues of state protection, state acquiescence and internal relocation because she found the Applicant faced no fear or risk that warranted non-refoulement protection.
35. 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 adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.
Conclusion
36. 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 21st day of November 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 21/11/2018
Munna Mohammad
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 21/11/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 8801/17/10/131/B1015
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 1451/17 (formerly RBCZ 3001397/14)
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 41-55.
[7] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[8] CACV 219/2018 [2018] HKCA 570, para 14(1).
[9] The Board's decision, para 42.
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