|
HCAL 568/2018
[2019] HKCFI 1403
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 568 of 2018
BETWEEN
|
DAS Ratan alias SWAPAN Banik |
Applicant |
|
and |
|
|
Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
|
and |
|
|
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 52 (DOB: 5 February 1967).
2. The Applicant claimed he would be harmed or killed by (i) his creditors Mostofa and Akash because he was unable to repay them, (ii) supporters of the Awami League (“AL”) because he declined to support AL, and (iii) those Muslims who discriminated him.
3. The Applicant had been to Hong Kong previously. On 6 May 2002, he entered Hong Kong as visitor under the name of Swapan Banik. He was allowed to stay until 20 May 2002. However, he overstayed. He was later arrested and repatriated to Bangladesh on 3 August 2002.
4. On 18 August 2006, the Applicant came to Hong Kong again as visitor. This time, he used the name Ratan Das. He was allowed to stay until 1 September 2006. He overstayed. On 14 May 2007, he was arrested by the police. The Applicant raised a torture claim but later withdrew it. He was repatriated to Bangladesh again on 22 February 2010.
5. On 23 March 2016, the Applicant surrendered to the Immigration Department. He claimed he left Bangladesh on 26 January 2016 and sneaked into Hong Kong from China on 4 February 2016. The Applicant raised a non-refoulement claim on 14 November 2016.
6. The Applicant said he came to Hong Kong in August 2006 and sought protection due to the political and religion problems in Bangladesh. He withdrew his torture claim in January 2010 and went back to Bangladesh when he thought his country was safe.
7. In February 2010, the Applicant borrowed 300,000 Takas from his friend Mostofa to start a business. However, he only managed to pay back 100,000 Takas to Mostofa in the next two years.
8. Mostofa had connection with AL. One day in 2012, some AL people sent by Mostofa came to the Applicant's shop to demand repayment of the outstanding loan. The Applicant asked for time. The AL people threatened to kill him if he could not pay back soon. They then left.
9. The Applicant sought assistance from the police. However, the police refused to help after learning those people were from AL. The Applicant said the police sided with AL.
10. The AL people further harassed the Applicant. They threatened to kill the Applicant but did not harm him physically. The Applicant felt unsafe. He decided to leave Bangladesh. He arranged for his wife and children to live with his in-laws. In April 2012, he went to Brunei to live with a distant relative.
11. The Applicant went back to Bangladesh to visit his family in March 2014. He stayed away from the AL people. He returned to Brunei in June 2014.
12. In mid-2015, the Applicant lost his job in Brunei. He then went back to Bangladesh. He borrowed 500,000 Takas from his friend Akash. He used part of the money to pay back Mostofa. Then he restarted his business. Again, the business was not good. He had difficulty to pay back Akash. Akash was not happy.
13. The Applicant said Akash was also connected with AL. The same group of AL people who had previously threatened him for Moftofa now pressed him to repay Akash. They came twice in late 2015 and threatened to kill him.
14. In late 2015, a group of 15-20 masked men forced into his home. Among them, there were those who had harassed him before. They were armed and tried to kill the Applicant. The Applicant managed to escape. He fled to Dhaka. He learnt from his wife that she was also assaulted. She sought help from the Union Council but to no avail. She did not report the matter to the police because she feared the matter might get worse if she complained to the police.
15. The Applicant said he was under great stress. He decided to leave his country again. On 26 January 2016, he left Bangladesh for China. On 4 February 2016, he sneaked into Hong Kong. He surrendered to the Immigration Department on 23 March 2016. The Applicant applied for non-refoulement protection on 14 November 2016.
16. Apart from his fear of the creditors, the Applicant claimed he left Bangladesh also for political and religious reasons.
17. The Applicant said he had been a supporter of the Bangladesh Nationalist Party from 2000. Since his return to Bangladesh in 2010, he had experienced pressure from AL, which was the ruling party. The AL people threatened him to quit BNP to join AL. The Applicant refused. He feared the AL people would harm him.
18. The Applicant further said the majority of people in Bangladesh were Muslims. He was a Hindu. The Muslims despised and discriminated the Hindus. The Applicant felt unsafe.
19. The Applicant claimed his wife told him his enemies were still looking for him and had threatened to kill him.
20. The Applicant did not think he could get state protection because the officials were mostly Muslims. He also said internal relocation was not viable as there were AL people all over the country and they were well connected.
21. 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].
22. On 6 April 2018, the Applicant applied for leave for judicial review.
Timeline
23. Things happened in this order: –
| 2002-5-6 |
The Applicant came to Hong Kong as visitor under the name of Swapan Banik. He was allowed to stay until 20 May 2002. However, he overstayed. He was arrested later and repatriated to Bangladesh on 3 August 2002. |
| 2006-8-18 |
The Applicant came to Hong Kong again as visitor. This time he used the name Ratan Das. He was allowed to stay until 1 September 2006. He overstayed. On 14 May 2007, the Applicant was arrested by the police. He raised a torture claim but withdrew it later. He was repatriated to Bangladesh again on 22 February 2010. |
| 2016-1-26 |
The Applicant left Bangladesh. |
| 2016-2-4 |
The Applicant sneaked into Hong Kong from China. |
| 2016-3-23 |
The Applicant surrendered to the Immigration Department. |
| 2016-11-14 |
The Applicant raised a non-refoulement claim. |
| 2017-4-27 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk (iii) BOR3 risk and (iv) BOR2 risk. [“the Director’s decision”] |
| 2017-10-9 |
The Applicant appeared before the Board for appeal. |
| 2018-2-7 |
The Board refused the Applicant's appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-4-6 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
24. 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.
25. 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]
26. 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
27. In his decision dated 27 April 2017, the Director did not accept the Applicant faced any torture risk, 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 claim with respect to all the four applicable grounds.
The Board's decision
28. The Applicant appealed to the Board. The Adjudicator interviewed him on 9 October 2017.
29. The Adjudicator was prepared to accept the Applicant's account of events. However, he considered the Applicant only faced verbal pressure from his creditors. He had never been harmed. After all, the Applicant admitted he could repay the outstanding loan by selling his property. The Adjudicator found the risk from the creditors was negligible.
30. The Adjudicator also noted the Applicant had never been harmed by AL. He was not satisfied that AL really targeted the Applicant.
31. The Adjudicator accepted the Applicant was a Hindu and there was some anti-Hindu violence by Muslim extremists. However, the Applicant had not been harmed by any Muslims. He only claimed the local Muslims demanded payment from the Hindu community. That kind of extortion was not a risk that warranted non-refoulement protection.
32. The Adjudicator found the Applicant was not a target of AL or the Bangladesh state. There was no state involvement. The Applicant had not been inflicted with ill-treatment to the minimum level of severity. His complained situation was also not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion).
33. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 7 February 2018, he refused the Applicant's appeal with respect to all the four applicable grounds.
Grounds of judicial review
34. In his affirmation, 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.
35. The Applicant 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.
36. The Applicant further complained the Adjudicator relied on outdated cases, information not officially recognised or simply hearsay.
Court hearing
37. The hearing took place on 5 September 2018. The Applicant was in person. A Bengali interpreter provided service in court.
38. The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. He had nothing to add.
39. The Applicant also confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refinement claim.
Discussion
40. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
41. 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]
42. The Applicant complained there was a lack of legal representation after the Director's decision. He had been represented by the Duty Lawyer Service up to the Director's decision dated 27 April 2017.
43. 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.[8] 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.
44. 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. Furthermore, he 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 his language problem.
45. The Applicant complained he received the appeal bundle only a few days before the Board hearing.
46. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[9] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[10], 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.
47. The Applicant said he received the appeal bundle on 2 October 2017. That was 7 calendar days prior to the Board hearing scheduled for 9 October 2017. There were two public holidays and one Sunday in that 7-day period, so there were only 4 working days in between.
48. 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.
49. 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.
50. The Applicant said he answered all the questions honestly in the Board hearing.[11] That would mean he knew well what was asked and how to answer. He was not confused.
51. There was no evidence the Adjudicator relied on outdated cases, information not officially recognised or simply hearsay.
52. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion 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 his 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
53. 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 judicial review.
Dated the 14th day of June 2019
|
(Henry Ng)
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:
|
|
|
|
|
|
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)).
|
|
Sent to the Applicant on 14/6/2019
DAS Ratan alias SWAPAN Banik
Applicant’s ref. no:
Nil.
|
|
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 14/6/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7030/17/5/36/B827
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 386/17 (formerly RBCZ 13640/16)
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] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[9] 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.
[10] 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 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.
[11] The Applicant's affirmation, Point 8 on page 4.
|