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HCAL1132/2017
[2018] HKCFI 1179
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1132 of 2017
BETWEEN
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Md Sumon |
Applicant |
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and |
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Director of Immigration |
1st Putative Respondent |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
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 Bangladesh national. He is now aged 35 (DOB: 8 February 1983).
2. The Applicant claimed he would be harmed or killed by the Awami League Party (“AL”) in Bangladesh. His friend Ripon had been killed by the AL people. He promised Ripon’s family to testify against the killers.
3. The Applicant was a member of Jubo Dal, which was a youth wing of the Bangladesh Nationalist Party (“BNP”). His friend Ripon was a senior member of Jubo Dal. In February 2011, Ripon was killed by the opponent party (AL). The Applicant witnessed the incident. He managed to escape. He did not report the matter to the police but Ripon’s parents did.
4. Some days later, those AL members involved in Ripon’s death went to the Applicant’s house. They threatened that if the Applicant should testify against them, they would kill him. Again, the Applicant did not seek assistance from the police. He did not go to other authorities because he did not know which one could help him.
5. In March 2011, Ripon’s parents asked the Applicant to testify against the killers. The Applicant promised them. Since then, he had been followed and assaulted. He had also received threatening phone calls.
6. The Applicant decided to leave Bangladesh. He went to India and stayed there for a few days in June 2011. He could not make a living there so he returned to Bangladesh.
7. The Applicant knew the AL people had been coming for him, so he relocated himself to another place in Bangladesh and stayed there for two years uneventfully. However, the AL people constantly harassed his family to ask for his whereabouts.
8. The Applicant finally left Bangladesh for China on 12 August 2014. He then sneaked into Hong Kong by boat. He was arrested by the police in Hong Kong on 17 August 2014. He subsequently sought non-refoulement protection.
9. 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].
10. On 21 December 2017, the Applicant applied for leave for judicial review.
Chronology of events
11. Things happened in this order: –
| 2014-8-12 |
The Applicant left Bangladesh for China. A few days later, he entered Hong Kong by boat illegally. |
| 2014-8-17 |
The Applicant was arrested by the police for illegal remaining. |
| 2014-8-19 |
The Applicant raised a non-refoulement claim. |
| 2016-4-19 |
The Director held a screening interview with the Applicant. |
| 2016-6-2 |
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”] |
| 2017-3-10 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-3-24 |
The Applicant failed to submit additional facts by deadline or thereafter. |
| 2017-3-27 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director's further decision”] |
| 2017-4-10 |
The Applicant appeared before the Board for appeal. |
| 2017-11-28 |
The Adjudicator refused Applicant’s claim with respect to all the four applicable grounds. |
| 2017-12-21 |
The Applicant applied for leave for judicial review. |
Respondents
12. 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.
13. In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Director and the Adjudicator as respondents.
14. The Adjudicator did not act 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 Director is the first putative respondent; the Board is the second putative respondent.
15. An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.[5]
16. In the present case, the Director's decision and further decision were both more than three months old by the time the Applicant filed his current application on 21 December 2017. However, the Applicant should not seek judicial review against the Director's decisions before the Board rendered its appeal decision on 28 November 2017. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the Director's decision and further decision albeit late on 21 December 2017; the application against the Board's decision was made within time.
Director of Immigration (the Director)
17. In the Director’s decision dated 2 June 2016, the immigration officer found that the Applicant’s feared risk was low. He found the AL people had no intent to severely harm or kill the Applicant.
18. The officer found the Applicant's feared situation was a private matter between the Applicant and his enemies. It had nothing to do with the state.
19. The officer considered reasonable state protection and internal relocation were available to the Applicant.
20. The officer did not find any real torture risk, persecution risk or BOR3 risk that warranted non-refoulement protection. He refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk, and (iii) CIDTP risk (BOR3 risk).
21. Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of the fourth applicable ground, i.e. life risk (BOR2 risk). However, the Applicant did not respond by the deadline of 24 March 2017 or thereafter.
22. In the Director’s further decision dated 27 March 2017, the immigration officer considered that the Applicant failed to establish a personal and real risk of his rights under the HKBOR being violated (including right to life under BOR2). He refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground: life risk (BOR2 risk).
TCAB/NCPO (the Board)
23. In his report, the Adjudicator set out the facts and the law clearly. He was alive to the issues of the Applicant’s case.
24. The Adjudicator found there was no evidence to support the Applicant’s assertions.
25. Even on the strength of the Applicant's claim, the Adjudicator found no evidence to show there was state acquiescence or any instigation by the Bangladesh government or officials.
26. There were police and government corruptions but the Adjudicator was satisfied there were reforms in Bangladesh. He found reasonable state protection was still available to the Applicant.
27. The Adjudicator considered there was no evidence to suggest the AL people would look for the Applicant all over the country. Reasonable internal relocation was also available to the Applicant.
28. The Adjudicator found no substantial grounds to believe the Applicant faced any risk that warranted non-refoulement protection. On 28 November 2017, he refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk).
Grounds of judicial review
29. In Enclosure 2 of Form 86, the Applicant complained the Director failed to properly consider the issue of state acquiescence; failed to appreciate the corruption and incompetence of the administration in Bangladesh; failed to appreciate the misconduct of the Bangladesh police; failed to consider state instigation and the absence of state protection; failed to properly consider relevant country-of-origin information (“COI”); cherry-picked information; being unfair; rendered unreasonable decisions.
30. Regarding the Adjudicator, the Applicant accused the Adjudicator failed to make sufficient inquiry; failed to appreciate his limitation in adducing proof; failed to give him sufficient chance to arrange evidence.
Court hearing
31. In Form 86, the Applicant requested a hearing. The hearing took place on 23 May 2018. The Applicant was in person. A Bengali interpreter provided service in court.
32. The Applicant said he had been applying for legal aid. He asked this court to adjourn the current proceeding.
33. The Applicant's legal aid application was refused by the Director of Legal Aid on 17 May 2018. The Applicant said he only knew the result now. He intended to appeal against that refusal decision.
34. There is no guarantee that the Applicant would succeed in getting legal aid. The current judicial review hearing should not be adjourned for something uncertain. I therefore refuse the Applicant’s asking for adjournment.
35. In court, the Applicant said all the grounds of judicial review were in Form 86. He also confirmed that he had submitted all relevant documents/information to the Director or the Board 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’.[6]
38. The Applicant's complaints are mostly vague. He could not elaborate or be specific about them even though he was invited to do so in court.
39. The Applicant complained he had limitation in adducing proof. He mentioned he had been in custody. However, in court he confirmed he was freed on reconnaissance after 25 September 2014. He was only detained again in mid-December 2017 to mid-January 2018. This latter detention period was well after the conclusion of all the proceedings before the Director and the Adjudicator. It had no bearing on the Applicant's preparation for his claim or appeal.
40. I have studied the Director's decisions and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied they had duly considered the Applicant’s claim. They had basis to find there was no state instigation or state acquiescence. They had made balanced study of COI relating to Bangladesh and reasonably concluded that state protection and internal relocation were available to the Applicant. There was no evidence to show the Director and the Adjudicator were prejudiced or cherry-picked information. The respective findings, conclusions and decisions made by them were not Wednesbury unreasonable.
41. There is no substance in any of the complaints against the Director or the Adjudicator.
42. In my judgement, the Director and the Adjudicator made no errors of law and there was no procedural unfairness. They had each 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 reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and the law. They considered the Applicant’s case carefully and applied the law correctly. The Director and the Adjudicator were entitled to render those findings, conclusions and decisions which were all reasonable. They had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
43. The Applicant's complaints are not reasonably arguable either against the Director or the Board. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.
Dated 5th 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 5/6/2018
Md Sumon
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 5/6/2018
Director of Immigration
1st Putative Respondent’s ref. no.:
QA T/C 170/16 & RBCZ/9001181/17 (formerly RBCZ 2668/14)
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
2nd Putative Respondent’s ref. no.:
USM 3915/16/6/105/B540
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] Order 53, rule 4 of the Rules of the High Court.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
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