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HCAL651/2017
[2018] HKCFI 993
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 651 of 2017
BETWEEN
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SHAEKH Sagor |
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 Bangladesh national. He is now aged 27 (DOB: 5 March 1991).
2. The Applicant entered Hong Kong illegally in December 2013 and subsequently sought non-refoulement protection. He claimed he joined the Bangladesh Nationalist Party (“BNP”) in 2007. Since then he had participated actively in BNP activities. In 2009, the Awami League (“AL”) became the ruling party. They tried to suppress the opposition parties including BNP.
3. In 2010, the Applicant participated in a protest in Dhaka. There was altercation between the two parties; BNP was outnumbered. The AL people were armed and even had guns to shoot into the air to scare others. The Applicant was informed by his friend Sajib that the AL people were after the Applicant and other protesters. Sajib warned the Applicant to leave Dhaka as soon as possible. The Applicant went to his home village but some strangers came to look for him. The Applicant managed to escape. He returned later and learnt that the AL people were after him. They vowed to kill him if he would not quit BNP to join AL.
4. The Applicant had a friend called Kawsar, who had joined AL. He informed the Applicant that the AL people were still after him.
5. The Applicant said the police and the authorities in Bangladesh were under the control of AL. They would not help him. Rather they would report his whereabouts to AL. There was widespread impunity in the police force; the country was corrupt. People belonging to the opposition parties would not be protected by the authorities. The Applicant said the AL people could easily find him in Bangladesh wherever he was.
6. Finally, the Applicant left Bangladesh for China on 29 November 2012. He stayed there till December 2013. Then he sneaked into Hong Kong by boat. He was arrested on 21 January 2014 and subsequently sought non-refoulement protection here.
7. In the ensuing two-tier screening process (“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 on 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].
8. On 19 September 2017, the Applicant applied for leave for judicial review.
Chronology of events
9. Things happened in this order: –
| 2012-11-29 |
The Applicant left Bangladesh for China. |
| December 2013 |
The Applicant sneaked from China into Hong Kong by boat. |
| 2014-1-21 |
The Applicant was arrested in Hong Kong for illegal remaining. |
| 2014-1-23 |
The Applicant filed a non-refoulement claim. |
| 2016-2-3 |
The Director held a screening interview with the Applicant. |
| 2016-3-11 |
The Director refused the Applicant’s claim on these three applicable grounds: (i) torture risk, (ii) persecution risk, and (iii) CIDTP risk (or BOR3 risk). [“the Director’s decision”] |
| 2016-3-21 |
The Applicant appealed to the Board. |
| 2017-6-7 |
The Director invited the Applicant to submit additional facts for the consideration of a fourth applicable ground: life risk (or BOR2 risk). |
| 2017-6-21 |
The Applicant failed to submit additional facts by deadline or thereafter. |
| 2017-6-29 |
The Director refused the Applicant’s claim on the fourth applicable ground: life risk (or BOR2 risk). (“the Director’s further decision”) |
| 2017-7-14 |
The Applicant appeared before the Board in person for appeal. |
| 2017-8-18 |
The Board dismissed the Applicant’s appeal on all the four applicable grounds. (“the Board’s decision”) |
| 2017-9-19 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
10. 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.
11. In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Board as proposed respondent and the Director as interested party. He sought relief in respect of the Board's decision dated 18 August 2017. The grounds for judicial review were attached to Form 86; there were three grounds.
12. In support of his application, he submitted a seven-page affirmation also dated 19 September 2017 [Folio 2] with Exhibit “SS-1” [the Board’s decision dated 18 August 2017].
13. Hence, in the current application the Board is named as putative respondent and the Director as putative interested party.
Director of Immigration (the Director)
14. In the Director’s decision dated 11 March 2016, the immigration officer found the level of risk of harm the Applicant would face was low. The officer considered that the AL people did not have a real intention to harm the Applicant. They just wanted to pressurise him to change to support AL. The officer did not accept the Applicant left Bangladesh for his alleged fear. On the other hand, the officer found that reasonable state protection was available in Bangladesh; reasonable internal relocation alternatives were also possible. The officer did not accept the Applicant faced a genuine and substantial risk of being subjected to BOR3 risk. The Applicant’s case did not warrant protection on the ground of persecution risk. The officer noted there was no severe pain or suffering inflicted upon the Applicant that fitted the definition of ‘torture’; there was no state instigation or state acquiescence. The officer did not find the Applicant had established a case of torture risk which warranted non-refoulement protection.
15. The officer refused the Applicant’s claim on these three applicable grounds: (i) torture risk, (ii) persecution risk, and (iii) CIDTP risk (or BOR3 risk).
16. Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of a fourth applicable ground, i.e. life risk (or BOR2 risk). However, the Applicant did not respond by the deadline of 21 June 2017 or thereafter.
17. In the Director’s further decision dated 29 June 2017, the immigration officer considered that the Applicant was not entitled to life risk protection because he failed to establish there was a personal and real BOR2 risk.
18. The officer refused the Applicant’s non-refoulement claim on the fourth ground: life risk (or BOR2 risk).
TCAB/NCPO (the Board)
19. In his report, the Adjudicator set out the facts and the law clearly. He was alive to the issues of the Applicant’s case. He found there were implausible and illogical features in the Applicant’s claim. The material allegations were not supported by objective evidence. There was no reliable evidence that the Applicant did join BNP in 2007 as he claimed. And even assuming that he did, the Adjudicator found the Applicant was merely a grass-root level supporter. The Adjudicator also found no evidence of state acquiescence or instigation. He viewed that the Applicant’s alleged enemies did not have a real intention to harm the Applicant, so any risk of harm was small. The Adjudicator considered the Applicant failed to make out a case of persecution risk or torture risk. There was also no real BOR3 risk or BOR2 risk.
20. In light of his findings that there was no real risk of any kind which warranted non-refoulement protection, the Adjudicator did not think it was necessary for him to go on to discuss internal relocation.
21. On 18 August 2017, the Adjudicator refused the Applicant’s non-refoulement claim on all the four applicable grounds.
Court hearing
22. In Form 86, the Applicant requested a hearing. The hearing took place on 25 April 2018. The Applicant was in person. A Hindi interpreter provided interpretation service in court.
23. The Applicant said he had never gone to school. He did not read or write English. He met a person one day before he filed the current judicial review application. That person helped him to write out Form 86 and the affirmation. The Applicant provided the contents. That person just wrote down and set out the contents in their present form. The Applicant said he did not have to pay that person. That person was not working in the legal field; he just had a similar case in court.
24. The Applicant said he told the Adjudicator that he had documents to prepare for submission. However, the Adjudicator would not give him time. The Applicant said he got those documents only recently in March 2018 from Bangladesh. They were related to a false report made by the Applicant’s enemy to the police in Dhaka in 2011.
Grounds for judicial review
25. The Applicant complains about:
(a) insufficient time to prepare for the appeal hearing before the Board;
(b) the decision-maker being unfair; and
(c) the Adjudicator’s failures.
Discussion
26. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
27. 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]
Ground (a): Insufficient time to prepare for the appeal hearing before the Board
28. The Applicant complained the Director only served the appeal bundle and skeleton submission on him around 7 July 2017, only a few days before the appeal hearing (14 July 2017). Most of the documents were in English. He thus did not have sufficient time to find an interpreter to assist him to deal with the documents. Due to inadequate preparation, he chose not to give evidence in the appeal hearing. The Applicant claimed that if he could have prepared well, he would be in a better position to answer the Adjudicator’s questions and to explain his case more clearly. He complained the time given to him for preparing the appeal was too short; the Adjudicator failed to ensure the Director would deliver the hearing bundle and skeleton submission to him in good time for preparation. The Applicant also accused the Adjudicator for failing to ask the interpreter to interpret the contents of the bundle and submission to him in the hearing.
29. If the Applicant really received the appeal bundle and the Director’s skeleton submission only on 7 July 2017, then there were six days before 14 July 2017 for him to prepare for the appeal hearing. It was not a long time. However, the Applicant’s case was not difficult and there was no evidence to show the bundle and submission papers were voluminous. A few days could be sufficient for reasonable and diligent preparation on the part of the Applicant.
30. Many documents in question were in English and the Applicant was not good in English at all. However, in the current application the Applicant had Form 86 and his affirmation well presented in English. He said the person who assisted him was someone he met a day before he filed the current application. That person was not related to the legal field and he did not have to pay that person.
31. Whether the Applicant had to pay that person is not important. But it indicates that the Applicant could find someone to deal with English documents for him should he so wish. I am sure it was the case at all material times.
32. The Applicant complained in court that he had told the Adjudicator he needed time to get certain documents to be submitted to the Board. However, the Adjudicator would not give him indulgence. This allegation was not written or hinted in Form 86 or in the Applicant’s affirmation. It is baffling to hear the Applicant (who raised his claim as early as January 2014) should only be able to obtain a 2011 Dhaka police report in March 2018 and that he did not have it in July 2017.
33. What the Applicant now complains is not evident to any extent in the Adjudicator’s report. In fact, para 10 of the report reads:
At the start of the hearing before the Board, the Appellant was asked if he confirmed the truth and correctness of all the evidence contained in the Bundle. The Appellant said that he received the Bundle but “cannot read” due to his low language level. The Board explained the content of the Bundle and the documents and submissions prepared by the Appellant with respect to his claim and his appeal contained therein. The Board went through the list of documents as contained in the Bundle and asked if the Appellant needed time to consider further or to seek assistance from Duty Lawyer or interpreters. He said no and that he had no additional information or grounds to add to the appeal apart from those he submitted.
In court, the Applicant agreed that para 10 was a correct record.
34. The Applicant’s complaints and allegations were inconsistent with para 10 of the Adjudicator’s report. The Applicant admitted that paragraph was correct. Thus, he contradicted himself. He failed to establish a reasonably arguable case on Ground (a). This ground is dismissed.
Ground (c): The Adjudicator’s failures
35. The Applicant criticised the Adjudicator for failing to take into account that he did not have sufficient legal knowledge and was no longer legally represented after the Director’s decision. The Applicant said the Adjudicator failed to inform him that he could complain about that.
36. The Adjudicator was certainly aware the Applicant was unrepresented at the later stage of the screening process. There is no need for him to warn the Applicant for that. He was prudent enough to ask the Applicant if he needed to seek assistance from the Duty Lawyer Scheme (see para 33 above). There is no substance in Ground (c), which must fail.
Ground (b): The decision-maker being unfair
37. The Applicant accused the decision-maker failed to act fairly or failed to attain the minimum standards of procedural fairness.
38. This ground lacked specifics. The Applicant failed to point out how unfair the decision-maker was and what the procedural unfairness was apart from his allegations in Ground (a) and Ground (c), which I have already dismissed. On the contrary, having read the Director's decision plus further decision and the Board’s decision, I find both the Director and the Board had adhered to the high standards of fairness required of the Applicant's non-refoulement claim. There is no substance in Ground (b), which must also fail.
39. 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. There is no substance in the Applicant’s complaint against the Adjudicator, who had engaged in proper joint endeavour with the Applicant in the inquiry process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The report of the Adjudicator showed that he was acquainted with the facts and the law. He had considered the Applicant's case carefully and applied the law correctly. He was entitled to render those findings, conclusions and decisions as he did and those findings/conclusions/decisions were all reasonable. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
40. The Director is an interested party in the current application. I have reviewed the Director's decisions under ‘rigorous examination and anxious scrutiny’. What has been said in para. 39 above is also true of the Director and his findings/ conclusions/decisions. The Director had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
41. 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 9th day of May 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 9/5/2018
SHAEKH Sagor
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 9/5/2018
Torture Claims Appeal Board / Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 3333/16/4/162/I312
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2048/15 & INCZ 9002146/17 (formerly RBCZ 1302/14)
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.
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