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HCAL338/2018
[2018] HKCFI 2417
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 338 of 2018
BETWEEN
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Rahman Talukder Md Atikur |
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 42 (DOB: 10 January 1976).
2. The Applicant claimed he would be harmed or killed by his enemy Rashid Shikdar (“Shikdar”).
3. The Applicant said he had been supporting the Bangladesh Nationalist Party (“BNP”) since the age of 15 or 16. He was not a member of BNP but his brother was an active member and convenor of Chhatra Dal, the student wing of BNP. The Applicant said his brother was very popular.
4. There was an election in late 2008. The Applicant and his brother actively canvassed votes for BNP. Their opponents were the Awami League (“AL”). Some AL people had asked the Applicant and his brother not to work for BNP.
5. AL won the election and became ruling party. Between 2009 and 2015, the Applicant and his brother had been receiving threats from the AL people, who pressurized them to quit BNP to join AL. The major threat came from Shikdar, who was a union chairman and the general secretary of AL in the area. Despite the continuing threats, the Applicant and his brother refused to join AL.
6. On 20 May 2015, there was a sub-district election. After the election, there was a fight between supporters of BNP and AL. Shikdar again asked the Applicant's brother to join AL. The Applicant's brother continued to refuse.
7. On 25 June 2015, the Applicant’s brother was intercepted by several men who claimed to be police officers. They took him to a lane and assaulted him brutally. The Applicant’s brother later died of the injuries.
8. On the following day, the Applicant reported the matter to the police. However, the police did not follow up his complaint. The Applicant believed Shikdar had interfered with the police and asked them not to handle the case. The Applicant was upset. He thought it was useless to bring the matter to other authorities. He believed Shikdar was closely related to AL, the police and the authorities.
9. The Applicant sought help from the BNP president in his area. The president printed posters to show the injury suffered by the Applicant’s late brother and had them put up in the area. He also held protests and rallies. They demanded the police to take action but the police refused.
10. After his brother’s death, the Applicant took over his brother’s cloth business. The Applicant started to get threats from the AL people. In December 2015, Shikdar called the Applicant. He told the Applicant that he had caused his brother’s death. He threatened to kill the Applicant unless the latter would give the shop to him or pay him 2 million Bangladesh takas.
11. In December 2015, the Applicant sold the business to a relative. However, Shikdar continued to ask for money with menaces. The Applicant was also threatened to join AL.
12. On one occasion, a fight broke out between the Applicant and his enemies. His neighbour came to his rescue. The police also intervened. However, the Applicant would not trust the police due to their inaction on his brother’s death. He believed his enemies were linked to AL, the police and the government authorities.
13. The Applicant feared for his life. In January 2016, he left his village with his wife and daughter. They went back to live with the Applicant’s in-laws. The Applicant still got threatening phone calls from Shikdar.
14. In February 2016, the Applicant went back to his home village to check on his property. He was told Shikdar and his men came regularly to look for him. The Applicant then left his village again.
15. The Applicant did not want to stay with his in-laws for too long. He thought he could not relocate himself in the country because he had no friends or relatives living in the other areas. He also believed his enemies could locate him wherever he was in Bangladesh.
16. The Applicant finally left Bangladesh for China on 16 February 2016. He sneaked into Hong Kong on 9 March 2016 and was arrested by the police. He raised a non-refoulement claim on 13 March 2016.
17. 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].
18. On 5 March 2018, the Applicant applied for leave for judicial review.
Timeline
19. Things happened in this order: –
| 2016-2-16 |
The Applicant left Bangladesh for China. |
| 2016-3-9 |
The Applicant was arrested by the police after he had entered Hong Kong illegally. |
| 2016-3-13 |
The Applicant lodged a non-refoulement claim. |
| 2016-11-4 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) BOR3 risk and (iv) BOR2 risk. [“the Director's decision”] |
| 2018-1-4 |
The Applicant appeared before the Board for appeal. |
| 2018-2-28 |
The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board's decision”] |
| 2018-3-5 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
20. 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.
21. 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]
22. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Adjudicator as respondent and the Director as interested party.
23. The Adjudicator was not acting in her personal capacity. She represented the Board. In court, the Applicant agreed to change to sue the Board in lieu of the Adjudicator. Thus, the Board is the putative respondent; the Director is the putative interested party.
The Director's decision
24. The Director did not accept the Applicant faced any risk that warranted non-refoulement protection. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. On 4 November 2016, 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 Board's decision
25. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 4 January 2018.
26. Despite she found some inconsistencies and contradictions in the Applicant's allegations, the Adjudicator was prepared to give the Applicant the benefit of doubt and proceeded to consider the Applicant’s claim on the facts presented by him.[6]
27. However, the Adjudicator found there was no evidence to prove the Applicant’s brother was actually killed by Shikdar or by any Bangladesh authority. The Applicant himself had not been inflicted with ill-treatment to a minimum level of severity. His complained situation was only a ‘money issue’ involving Shikdar. The Adjudicator noted the Applicant had only reported once to the local police about his brother’s death. He had not complained to the police of his own predicament. The Adjudicator found the Applicant was not a target of the state. There was no evidence that Shikdar was really connected with the police or the Bangladesh authorities. The Adjudicator further considered reasonable state protection and internal relocation were available to the Applicant in any event. She found the Applicant failed to prove there was any real risk that warranted non-refoulement protection.[7] On 28 February 2018, the Adjudicator 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
28. In Form 86 and his affirmation, the Applicant complained the Adjudicator unlawfully fettered her 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 the Adjudicator misdirected in law; failed to make sufficient inquiry; failed to consider updated or relevant COI; took into account outdated cases and irrelevant information; considered information not officially recognised or simply hearsay; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights; failed to call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; applied the wrong standard of proof.
30. The Applicant also complained there were failures at first instance by the assigned duty lawyer resulting in a lack of and /or insufficient legal representation.
31. The Applicant further 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 arrangement.
32. Although the Applicant did not name the Director as respondent but only as interested party, he accused the Director decided on BOR2 risk without screening.
Court hearing
33. The Applicant requested a hearing. The hearing took place on 4 July 2013. The Applicant was in person. A Bengali interpreter provided service in court.
34. The Applicant applied for legal aid on 30 April 2018. He said he did not know the result and would like to have the present proceedings be adjourned until the legal aid proceedings were over.
35. The Board's decision came out on 28 February 2018. The Applicant was duly notified and he took out the current application for leave for judicial review on 5 March 2018. However, he only applied for legal aid one odd months later on 30 April 2018.
36. The Applicant had delayed in applying for legal aid without justification. By the time of the hearing, it could not be estimated when all the legal aid proceedings would be over. Furthermore, there was no guarantee the Applicant would be granted legal aid eventually. [It is now known the Director of Legal Aid refused the Applicant's application on 5 July 2018.] In the circumstance, it would be inappropriate to adjourn the current proceeding. I thus refused to grant the Applicant adjournment and proceeded with his application for leave for judicial review.
37. The Applicant said he only knew a little English. A 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 to those grounds.
38. The Applicant also confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
39. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
40. 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’.[8] 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.” [9]
41. It is wrong for the Applicant to say the Director had not screened his non-refoulement claim with respect to BOR2 risk. The Director’s decision dated 4 November 2016 was on all the four applicable grounds including BOR2 risk.
42. The Applicant complained there were failures at first instance by the assigned duty lawyer. The Applicant failed to be specific.
43. The Applicant complained about lack/insufficient legal representation. He had been represented by the Duty Lawyer Service up to the Director's decision dated 4 November 2016. 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 how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
44. The Applicant raised his language problem. In the current application, a friend helped 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 at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling English documents.
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’[11] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[12], 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 the appeal bundle was served on him on 27 December 2017. That was 8 calendar days (or 6 working days excluding a Sunday and a public holiday) prior to the Board hearing scheduled for 4 January 2018. Thus, 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.
50. The Applicant said he answered all the questions honestly in the Board hearing.[13] That would mean he knew well what was asked and how to answer. He was not confused.
51. The Adjudicator had considered the issue of state protection. She found reasonable state protection was available to the Applicant. There was no issue of state acquiescence because the Applicant himself had not reported his own predicament to the authorities and there was no evidence the authorities had come to know about that.
52. The Applicant failed to show why psychological or psychiatric reports should be necessary in his case. He also failed to prove it was necessary for the Adjudicator to make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights.
53. There was no evidence the Adjudicator cherry-picked information or took into account outdated cases/irrelevant information/information not officially recognised or simply hearsay. There was also no evidence the Adjudicator applied the wrong standard of proof or misdirected herself in law.
54. 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 of the Applicant's case. 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. None of the Applicant’s complaints is substantiated.
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 the review.
Dated 21st day of November 2018
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(Alan Ngan)
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 his 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 21/11/2018
Rahman Talukder Md Atikur
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 21/11/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 5217/16/11/156/B672
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2027/16 (formerly RBCZ/11206/16)
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] The Board's decision, paras 55-64.
[7] Ibid., paras 65-78.
[8] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[9] CACV 219/2018 [2018] HKCA 570, para 14(1).
[10] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[11] 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.
[12] 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 personal 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.
[13] The Applicant's affirmation, Point 11 on page 4.
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