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HCAL1100/2017
[2019] HKCFI 1410
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1100 of 2017
BETWEEN
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Haque Ubaydul |
Applicant |
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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 national of Bangladesh. He is now aged 28 (DOB: 2 May 1991).
2. The Applicant claimed he would be killed by members or supporters of the Awami League (“AL”).
3. The Applicant said had supported Jamaat-e-Islami (“JeI”) since 2008. He attended meetings and started to earn recognition from some party leaders in 2011.
4. AL had been in power since winning the election in 2008. There were clashes between AL and JeI.
5. In early 2011, the Applicant and some JeI members were attacked by ten odd AL people. They managed to escape from their enemies but the Applicant was bruised all over his body.
6. The Applicant made no report to the police as he thought it was futile to complain. He stayed away from home temporarily. Later, he returned to his village and continued to attend JeI meetings.
7. One odd months later, the Applicant was again confronted by some AL people. They assaulted him and demanded him to leave JeI or he could not stay in Bangladesh. They said they could seek him out anywhere in the country.
8. Despite the threats, the Applicant stayed with JeI and became an official member in 2012. He conducted meetings and discussions for the party.
9. The AL people continued to target the Applicant. They threatened to kill him and made false accusation against him. The Applicant stayed in his relative’s place but the AL people found out his address later.
10. The Applicant went to India on 5 August 2013 but returned to Bangladesh two days later.
11. In late 2013, the Applicant was involved in a major fight between JeI and AL. He fled the scene and returned home. Some armed enemies went to look for him and threatened to kill him. His father asked him to leave Bangladesh as soon as possible.
12. The Applicant left Bangladesh for China on 21 January 2014. The next day, he sneaked into Hong Kong and was arrested by the police. He raised a non-refoulement claim subsequently.
13. The Applicant said the Bangladesh police sided with AL. He also said his enemies had falsely implicated him in a bomb blast in 2012/2013, so the police were after him.
14. The Applicant claimed his enemies had a wide network in the country. Internal relocation was not viable.
15. 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].
16. On 18 December 2017, the Applicant applied for leave for judicial review.
Timeline
17. Things happened in this order: –
| 2014-1-21 |
The Applicant left Bangladesh for China. |
| 2014-1-22 |
The Applicant was arrested by the police. He claimed he entered Hong Kong illegally from China on the same day. |
| 2014-1-26 |
The Applicant raised a non-refoulement claim. |
| 2016-5-23 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: torture risk, persecution risk and BOR3 risk. [‘the Director's decision”] |
| 2017-6-15 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-6-29 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-7-4 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [‘the Director's further decision”] |
| 2017-9-29 |
The Applicant appeared before the Board for appeal. |
| 2017-12-8 |
The Adjudicator refused the Applicant’s appeal with respect to all the four applicable grounds. [‘the Board's decision”] |
| 2017-12-18 |
The Applicant applied for leave for judicial review. |
Respondents
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 Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.
20. 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] The Applicant cannot seek leave for judicial review against the Director's decisions. Therefore, I shall deal with his application in relation to the Board's decision only.
The Director's decision
21. In his decision dated 23 May 2016, 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 refused the Applicant’s claim with respect to those three applicable grounds.
22. In his further decision dated 4 July 2017, the Director refused the Applicant’s claim with respect to the last applicable ground: BOR2 risk.
The Board's decision
23. The Applicant appealed to the Board. The Adjudicator interviewed him on 29 September 2017.
24. The Applicant claimed he had been much involved in JeI’s activities. Yet, he could not tell the Adjudicator the party’s ideology. The evidence of his participation in the party was vague and contradictory.
25. The Adjudicator found it odd that the Applicant would not seek asylum in India when he went there in August 2013. According to the Applicant, he was already under threat from his enemies at that time. The Adjudicator was not satisfied with the Applicant’s explanation that he wanted to come to Hong Kong because of human rights concern.
26. The Adjudicator noted the Applicant failed to mention in his non-refoulement claim form (“NCF”) dated 30 November 2015 that he had been falsely accused of being involved in a bomb blast and pursued by the Bangladesh police. The Adjudicator found it odd that the Applicant could leave his country without being stopped. That did not support his saying that he was wanted by the Bangladesh authority.
27. The Adjudicator did not accept the Applicant's claim. On 8 December 2017, she refused the Applicant's appeal with respect to all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR2 risk.
Grounds of judicial review
28. In his affirmation, the Applicant made complaints against the Director and the Adjudicator. He said they failed to conduct sufficient independent inquiry and critical analysis of country-of-origin information ("COI"); failed to justify their preference of COI; cherry-picked information; failed to consider properly the issues of state protection and state acquiescence; failed to consider he had suffered severe injuries; failed to understand his claim was premised on political rivalry; failed to understand AL’s persecution of JeI and AL’s influence of the Bangladesh police; failed to give sufficient reason for their decisions.
Court hearing
29. The hearing took place on 29 August 2018. The Applicant was in person. A Bengali interpreter provided service in court.
30. The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. The Applicant had nothing to add to his grounds.
31. The Applicant confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
32. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
33. 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]
34. The Applicant made complaints against the Director and the Adjudicator. As said in paragraph 20 above, I shall deal with his application in relation to the Board's decision only as the Director's decisions had gone on appeal to the Board as rehearing.
35. The Applicant complained the Adjudicator failed to understand his claim. I do not agree. The Adjudicator’s report showed the Adjudicator was alive to the Applicant’s claim that he was an active JeI supporter/member under threat and persecution by AL. The Adjudicator made extensive inquiry with the Applicant. She did not accept his claim. She had basis to come to her conclusion, which was not Wednesbury unreasonable.
36. The Applicant accused the Adjudicator did not conduct sufficient independent inquiry and critical analysis of COI. The Applicant failed to be specific.
37. The Applicant complained the Adjudicator cherry-picked information and preferred certain COI. There was no such evidence.
38. The Applicant said the Adjudicator failed to consider properly the issues of state protection and state acquiescence; failed to consider he had suffered severe injuries; failed to understand his claim was premised on political rivalry; failed to understand AL’s persecution of JeI and AL’s influence of the Bangladesh police. These were not real issues as the Adjudicator disbelieved the Applicant's claim.
39. The Applicant complained the Adjudicator failed to give sufficient reasons for her decision. That was not correct. The Adjudicator gave sufficient and clear reasons for her rejection of the Applicant's claim with respect to all the four applicable grounds.
40. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She 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. She 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
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 judicial review.
Dated the 18th day of June 2019
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(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
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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 18/6/2019
Haque Ubaydul
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 18/6/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 3813/16/6/3/B516
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 2191/15 &
RBCZ 9001995/17 (formerly RBCZ 1329/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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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).
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