|
HCAL609/2018
[2019] HKCFI 1899
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 609 of 2018
BETWEEN
|
Mizi Mohammad Akkach |
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 36 (DOB: 1 January 1983).
2. The Applicant claimed he would be harmed or killed by his brother Abbas because of money dispute. Abbas was affiliated with the Awami League (“AL”).
3. In 1998, the Applicant worked in Saudi Arabia. He went back to Bangladesh in 2010. He asked Abbas to return the money he had remitted to him for safekeeping. Abbas refused.
4. One day in late 2010, the Applicant asked Abbas again to give him back the money. Abbas assaulted him.
5. The Applicant kept on asking Abbas to return the money to him. Abbas threatened to kill him.
6. Abbas assaulted the Applicant when they bumped into each other.
7. The Applicant did not feel safe so he left home to live with his in-laws in mid-2011. He learnt some men came to look for him. He believed those men were sent by Abbas. The Applicant then moved to Dhaka to stay with a friend. However, Abbas called that friend to enquire of the Applicant’s whereabouts.
8. The Applicant knew Abbas was an influential man. He decided to leave the country.
9. On 10 January 2013, the Applicant left Bangladesh for China. He wanted to go to Italy but he was kept waiting by his agent.
10. In mid-April 2013, the Applicant came to Hong Kong illegally. He was arrested by the police on 5 May 2013. He applied for non-refoulement protection on 9 May 2013.
11. In the ensuing two-tier screening process, 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].
12. On 11 April 2018, the Applicant applied for leave for judicial review.
Timeline
13. Things happened in this order: –
| 2013-1-10 |
The Applicant left Bangladesh for China. |
| Mid-April 2013 |
The Applicant entered Hong Kong illegally. |
| 2013-5-5 |
The Applicant was arrested by the police. |
| 2013-5-9 |
The Applicant raised a non-refoulement claim. |
| 2015-2-16 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) BOR3 risk. [“the Director's decision”] |
| 2016-9-1 |
The Applicant appeared before the Board for appeal. |
| 2017-5-17 |
The Director refused the Applicant's claim with respect to the fourth applicable ground: BOR2 risk. [“the Director's further decision”] |
| 2017-7-12 |
The Applicant appeared before the Board again. |
| 2017-8-16 |
The Board refused the Applicant's claim with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-4-11 |
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. 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
18. The Applicant appealed to the Board. The Adjudicator interviewed him on 1 September 2016 and 12 July 2017.
19. The Adjudicator found the Applicant's allegation unbelievable and illogical. He did not believe Abbas had sent people to look for the Applicant. The Adjudicator found there was no evidence that Abbas had exerted influence as an AL supporter on the Applicant. He noted the Applicant had stayed in Dhaka for several months uneventfully before he left Bangladesh for China. He further noted the Applicant was arrested by the Hong Kong police in October 2013 for illegal employment. The Adjudicator was not satisfied the Applicant was a genuine asylum seeker. He found the Applicant came to Hong Kong to make money.
20. The Adjudicator disbelieved the Applicant’s claim. However, even on the Applicant's account of events, the Adjudicator found the complained situation was only a private dispute of money. It was not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). The Applicant had not been inflicted with harm to the minimum level of severity. There was no evidence the Bangladesh officials or police or AL were involved. The Applicant was not targeted by the state.
21. The Adjudicator studied relevant country-of-origin information ("COI"). He was satisfied that reasonable state protection and internal relocation were available to the Applicant in any event.
22. On 16 August 2017, the Adjudicator refused the Applicant’s claim 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 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.
25. The Applicant further complained the Adjudicator relied on outdated cases, information not officially recognized or simply hearsay.
Court hearing
26. The hearing took place on 20 September 2018. The Applicant was in person. A Bengali interpreter provided service in court.
27. 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.
28. The Applicant confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim.
29. The Applicant filed the current application only on 11 April 2018, almost eight months after the Board's decision was issued on 16 August 2017. He said he did not receive the Board's decision in August 2017 although he was living at the reported Tai Nan Street address. The Applicant said that a few months ago the Immigration Department told him his case was over. He then got the Board's decision from the Immigration Department. A friend helped him to file the current application.
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]
Late application for leave for judicial review
32. Order 53 rule 3(1) of the Rules of the High Court reads: –
No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.
33. Order 53 rule 4(1) and (2) of the Rules of the High Court read: –
(1) 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.
(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.
34. It is clear from these provisions that no application can be made after the three-month period unless the Court considers that there is good reason for extending time. The Applicant must provide good reason for the Court to give an extension of time. It is a pre-requisite in late application for leave for judicial review.[8] If the court is not satisfied that there is good reason for extending time, then no application for judicial review can be made in accordance with Rule 4(1). In that event, the Court should not proceed to consider if leave should be granted or refused on other grounds.[9]
35. In the present case, the Board’s decision was issued on 16 August 2017. The Applicant only applied for leave for judicial review almost eight months later on 11 April 2018. Excluding the 3-month grace period for filing, he was almost 5 months late.
36. The Applicant said he did not receive the Board's decision in August 2017 although he was living at the reported Tai Nan Street address. He said the Immigration Department told him his case was over around April 2018. He then got the Board's decision from the Immigration Department and a friend helped him to file the current application.
37. The Applicant said he did not get the Board's decision in August 2017 which was sent to his reported address. I am prepared to accept that might be the case. I would grant the Applicant extension of time to apply for leave for judicial review although his application was late.
38. I now consider the merit of the Applicant's complaints against the Adjudicator.
39. The Applicant complained about the lack of legal representation.
40. The Applicant was represented by the Duty Lawyer Service up to the Director's decision dated 16 February 2015.
41. 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.[10] 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.
42. The Applicant raised his language problem.
43. It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.[11]
44. In the current application, Form 86 and the Applicant's affirmation were prepared in English. 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 a qualified interpreter when he was before 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’[12] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[13], 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 or about 25 August 2016. That was 7 calendar days (or 6 working days) prior to the first Board hearing scheduled for 1 September 2016. The bundle was served on the Applicant in time.
48. 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.
49. 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. He elected not to give evidence on 1 September 2016.[14]
50. On 12 July 2017, there was another Board hearing after the Director's further decision was issued on 17 May 2017. The Applicant again attended the hearing. He had nothing useful to add.[15]
51. There was no evidence the Applicant was confused in either of the two Board hearings.
52. In court, the Applicant confirmed he had presented all of his case to the Director and the Adjudicator. Clearly, he had been given sufficient time and opportunities to explain his case in the whole screening process.
53. The Applicant complained the Adjudicator took into account outdated cases, information not officially recognised or simply hearsay. There was no such evidence. The Applicant failed to be specific.
54. 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
55. 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 30th day of July 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 30/7/2019
Mizi Mohammad Akkach
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 30/7/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 1024/15/2/172/B164
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 680/14 & RBCZ/9001551/17 (formerly RBCZ 2000484/14)
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] 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 110/2016 Kwok Cheuk Kin, para 17.
[9] CACV 110/2016 Kwok Cheuk Kin, para 19.
[10] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[11] See Re Zaman Muhammad [2018] HKCA 486 at [13]; Re Gurnishan Singh [2018] HKCA 704 at [13].
[12] 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.
[13] 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.
[14] The Adjudicator’s report, para 21.
[15] Ibid.
|