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HCAL771/2017
[2018] HKCFI 1176
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 771 of 2017
BETWEEN
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Mojumder Sonjoy |
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 Bangladesh national. He is now aged 34 (DOB: 10 June 1983).
2. The Applicant claimed his life was threatened by Jibon and his gang because he had lost a box, which Jibon had entrusted him for custody. The Applicant was a Hindu while Jibon and his gang were Muslims. The Applicant said the Hindus in Bangladesh were persecuted by the Muslims.
3. The Applicant claimed Jibon was a terrorist and a leader of the Bangladesh Nationalist Party (“BNP”). Jibon had strong connections and networks.
4. One day in August/September 2012, Jibon left a box in the Applicant’s shop. The Applicant did not know what was inside. Thirty minutes later, another person came to ask for the box, saying he was instructed by Jibon to fetch it. After that person had left with the box, Jibon reappeared to ask for the box. Knowing the Applicant had allowed the other person to take it away, Jibon demanded huge compensation from the Applicant. He allowed the Applicant one day to pay or to give him back the box. He locked up the Applicant in the shop. The Applicant later managed to escape. Jibon and his gang looked for him. They threatened the Applicant’s parents that they would kill him.
5. Jibon and his gang harassed the Applicant’s family often. The Applicant did not report the matter to the police. He said the police could not help him because Jibon was a terrorist with great influence. He believed Jibon had licence to kill with acquiescence of the authorities.
6. The Applicant finally came to Hong Kong illegally in October 2012. He raised a torture claim, which was refused by the Director on 14 February 2013. On 22 March 2013, the Applicant appealed against that decision. The Torture Claims Appeal Board refused his late application of appeal on torture claim.
7. In April 2013, the Applicant raised a non-refoulement claim.
8. The Applicant said Jibon and his gang were still looking for him. They hurt his father seriously in an assault in August 2016. The Applicant’s brother reported to the Bangladesh police but the police refused to accept the complaint.
9. In November 2016, the Applicant submitted additional facts to the Director. The Applicant said there was recent escalated altercation between the Muslims and the Hindus in Bangladesh. The Hindus were persecuted by the Muslims. The Applicant feared that he being a Hindu would be persecuted and killed by the Muslims. He feared Jibon and his gang, who were Muslims, would take advantage of the situation to persecute and kill him.
10. In the appeal hearing before the Adjudicator, the Applicant claimed he also feared harm from the Rohingyas coming to Bangladesh from Myanmar.
11. The Unified Screening Mechanism (“USM”) has come into operation on 3 March 2014. It is a two-tier screening process. Normally, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) would consider an 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].
12. In the present case, the Director considered that the Applicant’s torture claim had already been dealt with in 2013. In the Applicant’s subsequent non-refoulement claim, the Director did not feel obliged to consider the torture risk issue again; he only considered the remaining three applicable grounds, namely, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk).
13. On 24 April 2017, the Director refused the Applicant’s claim with respect to those three applicable grounds.
14. The Applicant appealed to the Board. The Adjudicator thought he should consider the Applicant’s case in relation to all the four applicable grounds including torture risk.
15. On 4 October 2017, the Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds.
16. On 17 October 2017, the Applicant applied for leave for judicial review.
Chronology of events
17. Things happened in this order: –
| 2012-10-2 |
The Applicant left Bangladesh for China by air. He then entered Hong Kong illegally from China. He was arrested by the police. |
| 2012-10-6 |
The Applicant raised a torture claim.
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| 2013-1-15 |
The Director interviewed the Applicant on torture claim.
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| 2013-2-14 |
The Director refused the Applicant’s torture claim. [“the Director's decision in 2013”]
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| 2013-3-22 |
The Board refused the Applicant’s late filing of appeal with respect to the Director's decision on torture claim. [“the Board’s decision in 2013”]
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| April 2013 |
The Applicant raised a non-refoulement claim.
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| 2016-11-16 |
The Applicant submitted additional facts.
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| 2017-1-18 |
The Director further interviewed the Applicant.
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| 2017-4-24 |
The Director refused the Applicant's claim with respect to these three applicable grounds: persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk). [“the Director's decision in 2017”]
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| 2017-9-11 |
The Applicant appeared before the Board for appeal. |
| 2017-10-4 |
The Board refused the Applicant's claim on all the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk). [“the Board’s decision in 2017”] |
| 2017-10-17 |
The Applicant applied for leave for judicial review. |
Respondents
18. In form 86, the Applicant named the Board and the Director as proposed respondents. The Board is the first putative respondent; the Director is the second putative respondent.
19. 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]
20. In the present case, the Director's decision dated 24 April 2017 was more than three months old by the time the Applicant filed his application for leave for judicial review on 17 October 2017. However, the Applicant should not seek judicial review against the Director's decision before the Board rendered its appeal decision on 4 October 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 (dated 24 April 2017) albeit late on 17 October 2017; the application against the Board's decision was made within time.
Director of Immigration (the Director)
21. The Applicant had made a torture claim previously in 2012. It was rejected by the Director on 14 February 2013. The Applicant filed his appeal late on 22 March 2013. The Board refused his late application then. After that, the Applicant raised a non-refoulement claim in April 2013.
22. The Director considered that the torture risk issue had already dealt with. He then considered the Applicant’s non-refoulement claim under the Unified Screening Mechanism only in relation to the other three applicable grounds: persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk).
23. In the Director's decision dated 24 April 2017, the immigration officer did not make specific findings on the Applicant's credibility. But even on the strength of the Applicant's claim, the officer considered the Applicant had not suffered ill-treatment to a minimum level of severity. He did not accept the alleged enemies had a real intention to harm or kill the Applicant. On the other hand, there were reasonable state protection and internal relocation available to the Applicant.
24. The officer found that the Applicant did not have well-founded persecution risk, or real and personal BOR 3 risk or BOR2 risk. He refused the Applicant’s non-refoulement claim with respect to these three applicable grounds: persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk).
TCAB/NCPO (the Board)
25. The Adjudicator was aware the Director had already refused the Applicant’s claim on torture risk in 2013. However, he was of the view that the Applicant’s claim at that time was based only on his fear of harm from Jibon. Now, the Applicant had added the allegation of the Muslims’ persecuting the Hindus. The Adjudicator considered the Director was wrong not to reconsider torture risk in light of the added allegation. The Adjudicator therefore screened the Applicant’s claim with respect to all the four applicable grounds: persecution risk, CIDTP risk (BOR3 risk), life risk (BOR2 risk) and torture risk as well.
26. The Adjudicator found many inconsistent and implausible features in the Applicant’s version. He found the Applicant an incredible witness, who had fabricated his claim. The Adjudicator considered the Applicant did not have any real risk of harm from Jibon, the Muslims or the Rohingyas. He ruled the Applicant failed to establish any real risk that warranted non-refoulement protection.
27. In light of his finding that the Applicant’s claim was unbelievable, the Adjudicator did not find it necessary to go on to discuss such issues as human rights violations, state acquiescence, state protection or internal relocation.
28. On 4 October 2017, the Adjudicator refused the Applicant's claim on all the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk).
Grounds of judicial review
29. In his affirmation dated 17 October 2017, the Applicant complained the Adjudicator was wrong to find him incredible; was wrong to find there was no misconduct on the part of the Director; failed to attain the high standards of fairness; failed to understand his life risk; failed to understand persecution against the Hindus in Bangladesh.
30. The Applicant accused the Adjudicator and the Director failed to conduct sufficient inquiry into the conditions of Bangladesh; failed to conduct critical analysis of relevant information; cherry-picked information; were not clear of the risks facing the Hindus in Bangladesh in that they were persecuted by the Muslim majority; failed to appreciate the lack of state protection; failed to consider extended state acquiescence; failed to assess his claim under all the applicable grounds.
Court hearing
31. The Applicant requested a hearing. The hearing took place on 4 May 2018. A Bengali interpreter provided assistance in court.
32. The Applicant confirmed all the grounds of judicial review were in his affirmation. The court invited him to elaborate on those grounds or to give specifics. He did not. The Applicant only said his problem was still existing in Bangladesh. His enemies were still looking for him and threatened his parents.
Discussion
33. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
34. 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]
35. I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator 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.
36. Unfortunately, the immigration officer on behalf of the Director wrongly considered that he need not reconsider the torture risk issue in 2017 despite the Applicant in his further submission dated 16 November 2016 had added the allegation of recent escalated persecution of the Hindus by the Muslims in Bangladesh. I agree with the Adjudicator that the additional allegation would oblige a reconsideration of the Applicant’s claim with respect to torture risk. That the Director failed to do so was an error of law. However, the Adjudicator had made up for that. The Adjudicator meticulously reconsidered the Applicant’s claim in relation to all the four applicable grounds including torture risk.
37. In his decision dated 4 October 2017, the Adjudicator had proper basis to find the Applicant’s claim incredible. He was entitled to consider the Applicant did not have any real risk that warranted non-refoulement protection. In light of such finding, the Adjudicator was also entitled not to go on to discuss the issues of human rights violations, state acquiescence, state protection and internal relocation because the Applicant was not really at risk in his home country. The Adjudicator’s findings, conclusions and decisions were not Wednesbury unreasonable.
38. Except for his failure to reconsider the Applicant’s claim in relation to torture risk, the Director’s findings, conclusions and decisions were also not Wednesbury unreasonable. He made no other errors of law or further procedural unfairness.
39. Since the Adjudicator’s reconsideration of the torture risk issue had made up for the Director's error, there is no need to remit the Applicant’s claim to the Director for further consideration with respect to torture risk. The Adjudicator had duly considered the Applicant’s claim with respect to all the four applicable grounds. He had good basis to come to his findings, conclusions and decisions which were all reasonable. He made no errors of law and there was no procedural unfairness on his part. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
40. Apart from that failure to reconsider torture risk, the Director had also adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. As said, that single error had been remedied by the Adjudicator’s reconsideration of the torture risk issue.
Conclusion
41. The Director’s single error had been remedied by the Adjudicator’s due handling of the Applicant’s appeal against the Director's decision. The Applicant cannot complain anymore. His other complaints have no substance. The Applicant has not got a reasonably arguable case for judicial review. 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
Mojumder Sonjoy
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
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 7040/17/5/46/B829
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 2406/16 (formerly RBCZ 2000356/14)
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] 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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