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HCAL110/2018
[2019] HKCFI 1392
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 110 of 2018
BETWEEN
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Sheik Foried Uddin |
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 national of Bangladesh. He is now aged 40 (DOB: 1 February 1979).
2. The Applicant claimed he would be harmed or killed by people of the Awami League (“AL”).
3. In 1993, the Applicant joined Jatiyatabadi Chhatra Dal (“JCD”), the student wing of the Bangladesh Nationalist Party (“BNP”). He soon became a committee president. After graduation, the Applicant joined the union level of JCD and became a secretary.
4. BNP was in conflicts with AL. The Applicant was targeted by the AL people. The main persecutor was Joynal, who was a Member of Parliament and a powerful man.
5. In 1995, the AL people murdered a BNP member called Kazi. The Applicant had a part in pursuing the three murderers, who were later convicted. However, the three convicts were released 2-3 years later when AL came to power. They looked for the Applicant. The Applicant had to dodge them.
6. In 1997, the Applicant went to Saudi Arabia. He found a job there. He learnt there were a number of fake accusations against him in Bangladesh. The Applicant returned to Bangladesh only in mid-2004 when BNP was in power. However, AL got strong again in 2005/2006. The Applicant felt he was in danger. He went to Hong Kong on 7 August 2006 and overstayed from 22 August 2006.
7. The Applicant was arrested by the police two odd years later on 22 April 2009. He then raised a torture claim, which was later withdrawn.
8. The Applicant had applied to the UNHCR for asylum in 2006. In July 2012, his application was rejected by the UNHCR.
9. The Applicant was repatriated to Bangladesh on 13 August 2012 after he had withdrawn his torture claim. When he returned to Bangladesh, the Applicant found his problem was lingering. He left Bangladesh for China in late June 2013. On 18 July 2013, he sneaked into Hong Kong.
10. The Applicant was arrested by the police again on 6 December 2013. He raised a non-refoulement claim subsequently.
11. The Applicant said state protection and internal relocation were not available to him.
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 refused the Applicant’s claim with respect to all the four applicable grounds: risk of torture[1], risk of persecution[2], risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and risk of violation of the right to life (BOR2 risk)[4].
13. On 23 January 2018, the Applicant applied for leave for judicial review.
Timeline
14. Things happened in this order: –
| 2006-8-7 |
The Applicant entered Hong Kong as visitor. He overstayed from 22 August 2006. |
| 2009-4-22 |
The Applicant was arrested by the police. |
| 2009-4-25 |
The Applicant raised a torture claim. |
| 2012-8-13 |
The Applicant was repatriated to Bangladesh after he had withdrawn his torture claim. |
| 2013-7-18 |
The Applicant sneaked into Hong Kong. |
| 2013-12-6 |
The Applicant was arrested by the police again. |
| Dec 2013 |
The Applicant raised a non-refoulement claim. |
| 2017-1-3 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk. [“the Director’s decision”] |
| 2017-12-6 |
The Applicant appeared before the Board for appeal. |
| 2018-1-12 |
The Board refused the Applicant's claim with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-1-23 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
15. 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.
16. 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]
17. In Form 86, 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
18. In his decision dated 3 January 2017, the Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also found reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.
The Board’s decision
19. The Applicant appealed to the Board. The Adjudicator interviewed him.
20. The Adjudicator found there were many inconsistent and implausible features in the Applicant's allegations. He found no reason why the AL people should target the Applicant, Kazi and another boy, who were merely teenage students. (Kazi was said to be murdered but the Applicant had never been seriously harmed by his enemies.)
21. The Adjudicator noted the Applicant chose to go back to Bangladesh in 2012 although he claimed there were serious accusations against him and AL was in power then. His leaving and re-entering Bangladesh seemed to have no problem despite his allegation that he was an AL target. The Adjudicator found the Applicant's case was really that of a man who left his country for work rather than for safety concern.
22. The Adjudicator had considered the documents submitted by the Applicant but he attached little weight to them.
23. The Adjudicator did not believe the Applicant's claim. He refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk.
Grounds of judicial review
24. 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.
25. The Applicant also 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. He complained the Adjudicator failed to make appropriate arrangement.
26. The Applicant further complained the Adjudicator had relied on outdated cases or information not officially recognised or simply hearsay.
Court hearing
27. The hearing took place on 18 September 2018. The Applicant was in person. A Bengali interpreter provided service in court.
28. The Applicant said more than one friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. He had nothing to add. The Applicant reiterated the Director and the Adjudicator were wrong in their decision.
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 complained he received the appeal bundle only on or about 29 November 2017 before the Board hearing scheduled for 6 December 2017.
33. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[8] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[9], 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.
34. The Applicant received the appeal bundle 7 calendar days (or 6 working days) prior to the Board hearing. The bundle was served on the Applicant in time.
35. 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 and there was no evidence to suggest the bundle was voluminous or difficult.
36. 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 the appeal. There was no evidence to show the Applicant had so complained to the Adjudicator or asked for adjournment during the appeal hearing.
37. In court, the Applicant admitted he had more than one friend to help him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents. Furthermore, he was assisted by a qualified interpreter in the appeal hearing before the Adjudicator. The Applicant had much exaggerated his language problem.
38. The Applicant mentioned he was unrepresented during the appeal stage.
39. 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 this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
40. The Applicant said he was confused in the appeal hearing. However, in his affirmation the Applicant said he answered all the questions honestly.[11] That would mean he knew well what was asked and how to answer. He was not confused.
41. The Applicant complained the Adjudicator had relied on outdated cases or information not officially recognised or simply hearsay. There was no evidence of that.
42. 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
43. 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 for judicial review.
Dated the 31st day of May 2019
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(Henry Ng)
for Registrar, High Court
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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 31/5/2019
Sheik Foried Uddin
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 31/5/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 5862/17/1/146/B723
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1577/16 (formerly RBCZ 998/14)
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).
[8] 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.
[9] 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.
[10] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[11] The Applicant's affirmation, Point 8 on page 4.
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