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HCAL183/2018
[2019] HKCFI 2165
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 183 of 2018
BETWEEN
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AKTER MST SHIRIN |
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. She is now aged 32 (DOB: 12 February 1987)
2. The Applicant claimed she would be harmed or killed by some members of the Awami League (“AL”) and by the family of a person killed by her husband Shamim.
3. The Applicant married Shamim in 2005. Shamim was a member of the Bangladesh Nationalist Party (“BNP”). After marriage, he often assaulted the Applicant.
4. In October 2008, Shamim was involved in the murder of someone belonging to AL. Ten odd hostile villagers went to the Applicant’s home to look for Shamim. They could not find him so they left. Hours later, the police also came to look for Shamim.
5. In November 2008, the Applicant was attacked thrice by some armed people. They claimed themselves to be the family members of the murdered person. They wanted to seek revenge and demanded compensation. The Applicant had no money. Those people threatened to rape or kill her.
6. The Applicant did not complain to the police. She thought the police would not trust her.
7. In the third assault, the Applicant and her mother-in-law fled their home. They returned later and found their house had been burnt down. The Applicant's mother-in-law then fled to Dhaka while the Applicant went to live with her parents.
8. The Applicant stayed with her parents until 2010. During that period, the enemies twice came to torture her and her brothers. The Applicant was injured. She did not report the matter to the police because the assailants had threatened her not to do so or they would kill her.
9. Shamim later appeared. He admitted he had killed someone from AL. He planned to leave Bangladesh for India.
10. The enemies came to look for Shamim. They could not find him so they assaulted the Applicant and tried to take her away. Some neighbours came to her rescue. The enemies threatened they would kill the Applicant before they left.
11. The Applicant fled to Dhaka. She stayed with her aunt between 2010 and 2012. She gave birth to a son in 2011. The Applicant stated in her non-refoulement form (“NCF”) that nothing happened in those two years. However, she told the Director in the interview that her enemies attempted to abduct and kill her and her son.
12. The Applicant said her aunt later hit her and asked her to leave. The Applicant then moved with her son to live in Badda in 2012. She stayed there until November 2013. Nothing special happened in Badda.
13. The Applicant decided to leave Bangladesh to avoid her enemies. On 31 May 2014, she entered Hong Kong to work as domestic helper. Her employment contract was prematurely terminated on 15 July 2014. The Applicant began overstaying here from 30 July 2014. On 10 September 2014, she was arrested by the police. She filed a non-refoulement claim on 13 September 2014.
14. The Applicant was told by her family in Bangladesh that the enemies were still looking for her.
15. The Applicant did not think internal relocation was viable because her enemies were powerful terrorists.
16. 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 rejected 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].
17. On 7 February 2018, the Applicant applied for leave for judicial review.
Respondent/Interested party
18. 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.
19. 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]
20. In Form 86 (the notice of application for leave to apply for judicial review), 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.
The Director's decision
21. In his decision dated 24 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 rejected the Applicant’s non-refoulement claim with respect to those three applicable grounds.
22. In his further decision dated 14 June 2017, the Director did not accept the Applicant faced any BOR2 risk. He rejected the Applicant’s non-refoulement claim with respect to that last applicable ground.
The Board's decision
23. The Applicant appealed to the Board. The Adjudicator interviewed her on 5 September 2017.
24. The Adjudicator found that even on the Applicant's account of events, the Applicant had not been inflicted with ill-treatment to a minimum level of severity. The complained situation was not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). There was no state actor involved. The Adjudicator noted the alleged murder committed by Shamim occurred some years ago in 2008. If there was any risk to the Applicant from the alleged enemies, it would be confined to the local area. The Applicant had lived elsewhere in Bangladesh uneventfully. The Adjudicator was satisfied internal relocation was viable in the Applicant’s case.
25. On 12 January 2018, the Adjudicator rejected 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
26. 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.
27. The Applicant complained there was a lack of legal representation after the Director's decision. She also complained about the lack of language assistance. She said there was no means for her to find out if the basis of her claim in the non-refoulement claim form (“NCF”) had been properly translated by the interpreter.
28. The Applicant said she had not received the Director’s letter inviting her to submit additional facts for the consideration of BOR2 risk. She also did not get the Director’s further decision on BOR2 risk. She complained the interpreter in the Board hearing did not explain to her properly that there was a decision on BOR2 risk.
29. The Applicant said she was not fully fit to give evidence during the Board hearing. She said the Adjudicator ignored her medical condition and did not allow her to see the doctor or adjourn the hearing to another day.
30. The Applicant accused the Adjudicator gave undue consideration to country-of-origin information ("COI") and wrongly decided on the issue of internal relocation.
31. The Applicant also complained the Adjudicator allowed the Director to be excused from the board hearing on 5 September 2017.
Court hearing
32. The hearing took place on 3 September 2018. The Applicant was in person. A Bengali interpreter provided service in court.
33. The Applicant said a friend helped her to prepare Form 86 and the affirmation.
34. The Applicant emphasised she was not feeling well during the Board hearing. She said she had diabetic problem and had to go to the hospital that day. The Adjudicator said the hearing would finish in the morning. The Applicant complained the Adjudicator finished the inquiry quickly. Nevertheless, she understood the Adjudicator’s questions and she did answer him. The Applicant confirmed she had submitted all of her case to the Adjudicator and nothing was left out.
35. After the court hearing on 3 September 2018, the Applicant submitted some documents to show she had medical appointment on 9 May 2017, 15 May 2017 and 1 June 2017. There was no document relating to the Board hearing date, i.e. 5 September 2017.
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] 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.” [7]
38. The Applicant said she did not receive the Director’s letter inviting her to submit additional facts for the consideration of BOR2 risk. She also said she did not get the Director’s further decision on BOR2 risk. The Applicant complained the interpreter in the Board hearing did not explain to her properly that the Director had made a decision on BOR2 risk.
39. The Applicant’s complaint was not supported by evidence. There was no returned mail regarding the Director’s letter and the notice of the Director’s further decision. There was no evidence the Applicant was confused or puzzled about the issues in the Board hearing. There was also no evidence the Adjudicator and the interpreter did not perform their job dutifully.
40. The Applicant claimed she was not fully fit to give evidence during the Board hearing. She said the Adjudicator ignored her medical condition and did not allow her to see the doctor or adjourn the hearing to another day.
41. The Adjudicator noted the Applicant had expressed she was not feeling well. He understood the Applicant had to go to the hospital due to diabetic problem.[8] However, there was no evidence the Applicant was so unwell then that she could not participate in the Board hearing. The medical documents produced by the Applicant to this court only showed she had to go to the hospital in May and June 2017. She failed to prove she was not fit to participate in the Board hearing or the Adjudicator had been unfair to her. There was no evidence the Applicant had ever applied for adjournment in the hearing.
42. According to the Adjudicator’s report, the Applicant understood him and responded accordingly. She did clarify certain matters in her NCF and the Record of Interview.[9] In court, the Applicant confirmed she understood the Adjudicator’s questions and answered him. She told the Adjudicator all of her case.
43. The Applicant complained there were a lack of legal representation after the Director's decision.
44. 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 her case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
45. The Applicant raised her language problem.
46. It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.[11]
47. In the current application, a friend helped the Applicant to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. Furthermore, she was assisted by qualified interpreters while being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated her language problem.
48. The Applicant accused the Adjudicator gave undue consideration to country-of-origin information ("COI") and wrongly decided on internal relocation.
49. The Adjudicator had due regard of relevant COI. He had proper grounds to conclude internal relocation was viable in the Applicant's case. The Adjudicator’s finding was not Wednesbury unreasonable.
50. The Applicant also complained the Adjudicator allowed the Director to be excused from the Board hearing on 5 September 2017. The Applicant failed to show how this would prejudice her case.
51. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding 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 her case. The Adjudicator was acquainted with the facts. 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.
Conclusion
52. The Applicant's complaints are not reasonably arguable. She has no realistic prospect of success in the sought judicial review. I therefore refuse to grant her leave to apply for judicial review.
Dated the 3rd day of September 2019
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(Alan Ngan) |
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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 the Applicant’s 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 3/9/2019
AKTER MST SHIRIN
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 3/9/2019
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2733/15/12/62/B359
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1625/15 & RBCZ 9002036/17 (formerly RBCZ 3001787/14)
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] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570, para 14(1).
[8] The Board's decision, para 56.
[9] The Board's decision, para 14.
[10] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[11] See Re Zaman Muhammad [2018] HKCA 486 at [13]; Re Gurnishan Singh [2018] HKCA 704 at [13].
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