SHARIFUL ISLAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL374/2018

[2019] HKCFI 2166

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 374 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)

Following:

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 32 (DOB: 1 December 1986).

2.  The Applicant claimed he would be harmed or killed by the Awami League (“AL”). He was a member of the Bangladesh Nationalist Party (“BNP”).

3.  The Applicant joined BNP in 2008. He worked for Hamid, the co-chairman of a village union. The other co-chairman was Jalal, who was affiliated with AL.

4.  BNP and AL were in opposition. They had a lot of clashes in late 2008 because there was a union chairman election in early 2009.

5.  The Applicant was targeted by Jalal and his associates. Someone called Aksir from AL repeatedly demanded him to leave BP to join AL. Aksir later attacked the Applicant and injured him. The Applicant did not report the matter to the police as he thought the police would not help him.

6.  AL won the election in early 2009. The Applicant left his home village and went to Dhaka. He learnt from his family that the enemies were still looking for him and had threatened to kill him.

7.  In June 2009, the Applicant went to Nepal and India for safety. He could not stay in those countries so he returned to Bangladesh. He went to live in a place called Bangla Bazar. There he was harassed by an AL member called Babu. Babu threatened to kill him. The Applicant was once attacked by Babu’s men. They threatened to kill him.

8.  The Applicant did not complain Babu to the police. He thought Babu was influential and protected by the authorities. After staying in Bangla Bazar for six months, the Applicant moved to another place called Keranigonj.

9.  In Keranigonj, the Applicant was repeatedly harassed and threatened by another AL member called Apu. Apu assaulted and blackmailed him. The Applicant was told by his friends not to complain against Apu because the latter was the assistant to the sub-district chairman of AL.

10.  The Applicant did not think he would get state protection as long as AL was in power. He said internal relocation was not viable because his enemies could find him in the country.

11.  The Applicant left Bangladesh. He attempted to enter Hong Kong on 5 November 2011. He was refused permission to land. He returned to China and sneaked into Hong Kong that evening. The Applicant was arrested on the next day. He lodged a torture claim on 8 November 2011.

12.  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].

13.  On 8 March 2018, the Applicant applied for leave for judicial review.

Respondent/Interested party

14.  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.

15.  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]

16.  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

17.  In his decision dated 11 March 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 rejected the Applicant’s claim with respect to those three applicable grounds

18.  In his further decision dated 25 November 2016, the Director did not accept the Applicant faced any BOR2 risk. He rejected the Applicant’s claim with respect to that last applicable ground.

The Board's decision

19.  The Applicant appealed to the Board. The Adjudicator interviewed him on 12 December 2016.  The Applicant elected not to give evidence.

20.  The Adjudicator found there was no supporting evidence of the Applicant's bare assertion. He noted the Applicant did not seek protection in Nepal or India in 2009 when he went there. Also, the Applicant did not raise a claim when he first attempted to enter Hong Kong through the immigration check-point on 5 November 2011. After being refused entry, he returned to China and sneaked into Hong Kong that evening. He was arrested. Then he sought non-refoulement protection. The Adjudicator doubted his claim.

21.  Even on the Applicant's account of events, the Adjudicator found the Applicant had not been inflicted with harm to a minimum level of severity. The Adjudicator considered the alleged enemies were AL people localized to the places where the Applicant had stayed. 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 evidence of involvement by state actors or any state acquiescence. The Adjudicator studied relevant country-of-origin information ("COI"). He was satisfied reasonable state protection and internal relocation were available to the Applicant.

22.  The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 1 March 2018, he rejected the Applicant's appeal with respect to all the four applicable grounds.

Grounds of judicial review

23.  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.

24.  The Applicant said there was no legal representation or language assistance for his appeal to the Board.

25.  The Applicant complained the appeal bundle was given to him only several 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.

26.  The Applicant also complained he Applicant's decision had relied on outdated cases, information not officially recognized or simply hearsay.

Court hearing

27.  The hearing took place on 27 September 2018. The Applicant was in person. A Bengali interpreter provided service in court.

28.  The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. The Applicant had nothing to add to his grounds.

29.  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

30.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

31.  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]

32.  The Applicant said there was no legal representation for his appeal to the Board. He had been represented by the Duty Lawyer Service up to the Director's decision dated 11 March 2016. 

33.  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 his case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

34.  The Applicant raised his language problem.

35.  It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.[9]

36.  In the current application, a friend helped the Applicant 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, the Applicant was assisted by qualified interpreters while he was still represented by the Duty Lawyer Service and during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

37.  The Applicant complained he received the appeal bundle only a few days before the Board hearing.

38.  According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[10] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[11], 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.

39.  The Applicant said he received the appeal bundle on 5 December 2016. That was 7 calendar days (or 6 working days) prior to the Board hearing scheduled for 12 December 2016. The bundle was served on the Applicant in time.

40.  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.

41.  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.

42.  The Applicant said he answered all the questions honestly in the Board hearing.[12] That means he knew what was asked and how to answer. He was not confused.

43.  There was no evidence the Adjudicator had taken into account outdated cases, information not officially recognised or simply hearsay.

44.  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 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

45.  The Applicant's complaints are not reasonably arguable. He has no realistic prospect of success in the sought judicial review. I therefore refuse to grant him leave to apply for judicial review.

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

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] See Re Zaman Muhammad [2018] HKCA 486 at [13]; Re Gurnishan Singh [2018] HKCA 704 at [13].

 [10] 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.

[11] 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.

[12] The Applicant's affirmation, Point 8 on page 4.