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HCAL759/2018
[2019] HKCFI 537
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 759 of 2018
BETWEEN
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Alam Khorsed |
Applicant |
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and |
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Gina Towney, Esq. |
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 45 (DOB: 12 August 1973).
2. The Applicant claimed he refused to leave the Bangladesh Nationalist Party (“BNP”) to join the Awami League (“AL”), so he would be harmed or killed by Md Shakil (“Shakil”) of AL.
3. The Applicant said he had supported BNP since 1991. He became a BNP member in 2001.
4. On 5 May 2013, the Applicant took part in a protest against the government for introducing blasphemy law against Islam. The police suppressed the crowd with the help of the Chhatra League (“CL”), which was the student wing of AL. Many people were injured or killed. The Applicant, however, managed to escape.
5. In June 2014, some AL members approached the Applicant. One of them was Shakil. He was an AL leader. He asked the Applicant to join AL. The Applicant refused. Shakil threatened the Applicant that there would be serious consequence.
6. A month later, some AL members looked for the Applicant at his home. The neighbours came to drive the AL people away.
7. The Applicant did not report the matter to the police because he thought the police were corrupt and under the control of AL. He merely told the BNP leaders but there was no assistance from the party.
8. In late August 2014, Shakil and his men came again. The Applicant ran away before his enemies broke into his house. The men threatened the Applicant's mother that they would kill her son.
9. In December 2014, Shakil and his men found the Applicant at his working place. They assaulted him. Some people nearby came to help. The Applicant was injured but managed to escape eventually. He fled to another city to stay with a relative. His mother told him the AL people had been coming regularly for him.
10. The Applicant decided to leave Bangladesh. On 10 May 2015, he went to Malaysia for safety and employment. However, he could not find any job and he did not know how to seek protection there. He returned to Bangladesh nine days later on 19 May 2015. He dared not return home because his mother said the AL people were still looking for him.
11. In February 2016, the Applicant left Bangladesh again. This time, he went to China. He later entered Hong Kong illegally and was arrested by the police on 14 February 2016. The Applicant raised a non-refoulement protection claim in March 2016.
12. The Applicant said there was no state protection in Bangladesh as the authorities were under the control of AL.
13. The Applicant said his enemies could locate him easily in the country so internal relocation was not viable.
14. 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].
15. On 2 May 2018, the Applicant applied for leave for judicial review.
Timeline
16. Things happened in this order: –
| 2015-5-10 |
The Applicant left Bangladesh for Malaysia. |
| 2015-5-19 |
The Applicant returned to Bangladesh. |
| Feb 2016 |
The Applicant left Bangladesh for China. He later sneaked into Hong Kong. |
| 2016-2-14 |
The Applicant was arrested by the police. |
| Mar 2016 |
The Applicant raised a non-refoulement claim. |
| 2016-11-29 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) BOR2 risk and (iv) BOR3 risk. [“the Director’s decision”] |
| 2018-2-26 |
The Applicant appeared before the Board for appeal. |
| 2018-4-19 |
The Board dismissed the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-5-2 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
17. 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.
18. 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]
19. 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. Thus, the Adjudicator is the putative respondent; the Director is the putative interested party.
The Director's decision
20. In his decision dated 29 November 2016, 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 non-refoulement claim with respect to all the four applicable grounds.
The Board's decision
21. The Applicant appealed to the Board. The Adjudicator interviewed him on 26 February 2018.
22. The Adjudicator found the Applicant, while claiming to have been associated with BNP for years, could not tell much of his involvement in the party. He was unable to give evidence of the enrolling process including whether nomination and a joining fee were required and whether a membership card was issued. The Adjudicator did not accept the Applicant's claim that he was a BNP member or being involved in it. She was not satisfied the Applicant was targeted by his enemies. The Applicant's family were safe in Bangladesh and the Applicant himself could leave and enter the country at will. The Adjudicator also did not accept the Applicant's claim that his enemies had influence over the Bangladesh authorities. She did not accept there was state consent or acquiescence or the state failed to provide reasonable protection.
23. The Adjudicator found the Applicant incredible. She did not find the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk.
24. On 19 April 2018, the Adjudicator refused the Applicant's appeal with respect to all the four applicable grounds.
Grounds of judicial review
25. 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.
26. The Applicant accused the Adjudicator misdirected herself; failed to make sufficient inquiry; failed to consider updated or relevant country-of-origin information ("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.
27. The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of and/or insufficient legal representation.
28. 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.
29. 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
30. The hearing took place on 8 August 2018. The Applicant was in person. A Bengali interpreter provided service in court.
31. The Applicant applied for legal aid on 30 May 2018. The Director of Legal Aid refused his application on 31 July 2018. The Applicant applied for the current hearing to be adjourned till after the legal aid appeal, which was scheduled for 26 October 2018.
32. There was no indication that the Applicant would win his legal aid appeal. I refused to adjourn the current application.
33. The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. The Applicant had nothing to add to his grounds.
34. 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
35. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
36. 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]
37. It was wrong for the Applicant to say the Director had not screened his non-refoulement claim with respect to BOR2 risk. The Director screened the Applicant's claim with respect to all the four applicable grounds including BOR2 risk in his decision dated 29 November 2016.
38. The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 29 November 2016. The Applicant complained there were failures by the assigned duty lawyer. However, he failed to specify what the failures were.
39. The Applicant complained there were a lack of and/or insufficient legal representation. 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 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 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. Furthermore, the Applicant was assisted by qualified interpreters while being represented by the Duty Lawyer Service and also in 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 on 15 February 2018 before the Board hearing scheduled for 26 February 2018.
42. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[9] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[10], 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 received the appeal bundle 11 calendar days (or 6 working days after excluding 2 Sundays and 3 Lunar New Year holidays) before the Board hearing scheduled for 26 February 2018. 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 Adjudicator had considered the issues of state protection and state acquiescence. She did not accept the Bangladesh state would consent or acquiesce or fail to provide protection. The Adjudicator’s findings were not Wednesbury unreasonable. In any event, those were not real issues as the Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. For the same reason, there was no necessity for the Adjudicator to call for psychological or psychiatric reports or 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.
47. There was no evidence that the Adjudicator cherry-picked information or took into account outdated cases, irrelevant information, information not officially recognised or simply hearsay.
48. There was also no evidence the Adjudicator misdirected herself in law or adopted the wrong standard of proof.
49. 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. 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.
Conclusion
50. 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 7th day of March 2019
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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
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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 7/3/2019
Alam Khorsed
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 7/3/2019
Gina Towney, Esq.
Putative Respondent’s ref. no.:
USM 5515/16/12/162/B696
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1615/16 (formerly RBCZ 11147/16)
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] 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.
[10] 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.
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