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HCAL 330/2018
[2019] HKCFI 2021
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 330 of 2018
BETWEEN
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Hossain MD Khabir |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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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 43 (DOB: 5 July 1976).
2. The Applicant claimed he would be harmed or killed by people of the Awami League (“AL”). AL was the ruling party in Bangladesh. The Applicant supported an opposition party, the Bangladesh Nationalist Party (“BNP”).
3. The Applicant said that in 1993 he joined the Jatiyatabadi Jubo Dal (“JBD”), which was the youth wing of BNP. He held no position in JBD but participated in its activities.
4. A general election was held in early January 2014. BNP boycotted it. AL won the election.
5. Shortly before the election, the Applicant and a few JBD people were attacked by ten odd AL members. The Applicant was injured. He was hospitalised for a week and had to continue seeking treatment for his injured knee.
6. The Applicant's family and BNP people attacked some AL members for revenge. That led to retaliation by AL on BNP. The Bangladesh police took no action against AL. The Applicant believed the police took side with AL.
7. In 2014, the Applicant was told by some AL members to leave or they would kill him if they saw him again. One of them was Akhter, who was associated with Shagufta. Shagufta was a member of the parliament. The Applicant said Akhter and others would kill people for Shagufta.
8. The Applicant was scared. He moved to live in another place. Some AL people continued to harass him. They told him to close down his shop and threatened to kill him if he did not leave the place.
9. The Applicant twice complained to the local police but the police took no action.
10. In July 2014, the Applicant moved to live in Dhaka. He feared his enemies would trouble him further so he planned to go to Hong Kong to seek asylum.
11. On the advice of his travel agent, the Applicant first travelled to India and then Nepal to make it easier for him to get a visa to go to China later. From Nepal, he went back to India. He returned to Bangladesh on 12 August 2014. The Applicant repeated travelling to India and Nepal in the same month and returned to Bangladesh once again on 26 August 2014.
12. The Applicant finally left Bangladesh for China on 21 November 2014.
13. On 26 November 2014, the Applicant was arrested by the police in Hong Kong. He claimed he just arrived.
14. The Applicant raised a non-refoulement claim on 29 November 2014.
15. The Applicant said he learnt from his wife that his enemies were still looking for him.
16. 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].
17. On 2 March 2018, the Applicant applied for leave for judicial review.
Respondent/Interested party
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 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]
20. 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
21. 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 rejected the Applicant’s claim with respect to all the four applicable grounds.
The Board's decision
22. The Applicant appealed to the Board. The Adjudicator interviewed him on 29 November 2017.
23. The Adjudicator considered the Applicant played no significant role in his party. It was most unlikely he would be a threat to AL and thus targeted by them. The Adjudicator found it odd that the AL people would continue to go after the Applicant after he had moved to live in another place and stopped his political activities.
24. The Adjudicator found the Applicant’s reference of Shagufta and her assassins including Akhter was bare assertion. There was no evidence to support the Applicant's claim that the enemies were still after him now. The Adjudicator did not accept the Applicant faced any risk.
25. The Adjudicator noted the Applicant could go in and out of Bangladesh. That showed he was not a target of the state or the ruling party AL.
26. The Adjudicator considered internal relocation was viable in the Applicant's case in any event. He did not accept the AL people could find the Applicant anywhere in Bangladesh. It was merely the Applicant's speculation.
27. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 22 February 2018, he rejected the Applicant’s claim with respect to all the four applicable grounds.
Grounds of judicial review
28. In his affirmation, 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.
29. 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. He complained the Adjudicator failed to make appropriate arrangements.
30. The Applicant said the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay.
Court hearing
31. The hearing took place on 29 August 2018. The Applicant was in person. A Bengali interpreter provided service in court.
32. The Applicant said all the grounds of judicial review were in Form 86 and his affirmation. He also complained the Director and the Adjudicator ignored his injuries.
33. 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
34. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
35. 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]
36. The Applicant mentioned he did not have legal representation for appeal to the Board. He had been represented by the Duty Lawyer Service up to the Director's decision dated 25 July 2017.
37. 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.
38. The Applicant raised his language problem.
39. 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]
40. In the current application, someone helped the Applicant to prepare Form 86 and the affirmation. Apparently, the Applicant could find people to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while still being represented by the Duty Lawyer Service and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
41. The Applicant complained he received the appeal bundle only a few days before the Board hearing.
42. 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.
43. The Applicant said he received the appeal bundle on 22 November 2017. That was 7 calendar days (or 6 working days) prior to the Board hearing scheduled for 29 November 2017. The bundle was served on the Applicant in time.
44. 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.
45. 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.
46. 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.
47. There was no evidence the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay.
48. The Applicant complained the Adjudicator ignored his injuries. That was not correct. The Adjudicator was alive to the Applicant’s allegation that he still needed treatment for his injuries after he had come to Hong Kong. However, that was merely part of the Applicant’s claim. The Adjudicator clearly had looked at the whole of the Applicant’s case. He had proper grounds to disbelieve the Applicant’s claim of risk.
49. 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
50. The Applicant's complaints are not reasonably arguable. He has no reasonable prospect of success in the sought judicial review. I therefore refuse to grant him leave to apply for judicial review.
Dated the 14th day of August 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
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 14/8/2019
Hossain MD Khabir
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 14/8/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7987/17/8/25/B916
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1685/17 (formerly RBCZ 3002221/14)
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] 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.
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