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HCAL1154/2017
[2018] HKCFI 1468
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1154 of 2017
BETWEEN
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Dewan Aslam |
Applicant |
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and |
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Director of Immigration |
1st Putative Respondent |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
2nd Putative Respondent |
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 Bangladesh national. He is now aged 26 (DOB: 30 December 1991).
2. The Applicant claimed he would be harmed or killed by the Awami League (“AL”) because he supported the Bangladesh Nationalist Party (“BNP”). He had injured an AL member, who later became a powerful figure.
3. The Applicant said he had been an active supporter of BNP since 2010. His father was the General Secretary of BNP in the Arial Union.
4. In early 2012, some AL members stopped the Applicant from putting up posters for BNP.
5. In mid-2012, a number of AL people attacked a BNP congregation in which the Applicant was present with his father. The Applicant fought back and injured an AL member. The Applicant’s mother reported the matter to the police but the latter took no action.
6. In June 2012, some AL people came to the Applicant’s house to seek revenge. The Applicant was not at home. Those people hurt his mother. The Applicant believed they wanted to kill him. The matter was reported to the police but again they took no action. The Applicant believed the police were corrupt and influenced by AL.
7. The Applicant was in fear and moved to live elsewhere. On his father’s advice, the Applicant attempted to leave Bangladesh for China on 23 July 2012. However, his passport was a counterfeit. He was not allowed to leave the country then.
8. The Applicant stayed at his aunt’s house. In August 2012, some AL people came. The Applicant was not there. Those people vandalized everything in the house. Nobody was hurt. The matter was not reported to the police because they were unhelpful on the previous occasions. The Applicant did not know what other authorities he could turn to. The BNP leaders could not assist either as AL was in power.
9. The Applicant later moved to live with his aunt’s friend. The AL people managed to find out his whereabouts. Fortunately, the Applicant was not in the house when they came for him in September 2012.
10. The Applicant decided to leave Bangladesh again. On 5 September 2012, he left Bangladesh for China by air. He stayed there for several months. On 19 April 2013, he entered Hong Kong illegally from China by boat. He was arrested by the police two days later. The Applicant subsequently sought non-refoulement protection.
11. In the ensuing two-tier screening process (“the Unified Screening Mechanism”), 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 (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
12. On 28 December 2017, the Applicant applied for leave for judicial review.
Chronology of events
13. Things happened in this order: –
| 2012-9-5 |
The Applicant left Bangladesh for China. |
| 2013-4-19 |
The Applicant entered Hong Kong by boat illegally. |
| 2013-4-21 |
The Applicant was arrested by the police. |
| 2013-5-8 |
The Applicant raised a non-refoulement claim. |
| 2015-8-31 |
The Director held a screening interview with the Applicant. |
| 2015-9-30 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) CIDTP risk (BOR3 risk). [“the Director's decision”] |
| 2016-11-15 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2016-11-29 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-1-3 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director's further decision”] |
| 2017-11-23 |
The Applicant appeared before the Board for appeal. |
| 2017-12-15 |
The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2017-12-28 |
The Applicant applied for leave for judicial review. |
Respondents
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 complaint on a rehearing basis.
15. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Director and the Adjudicator as respondents.
16. The Adjudicator did not act in his personal capacity. He represented the Board. In court, the Applicant agreed to change to sue the Board in lieu of the Adjudicator. Thus, the Director is the first putative respondent; the Board is the second putative respondent.
17. 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.[5]
18. In the present case, the Director's decision and further decision were both more than three months old by the time the Applicant filed his current application on 28 December 2017. However, the Applicant should not seek judicial review against the Director's decision and further decision before the Board rendered its appeal decision on 15 December 2017. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the Director's decision and further decision albeit late on 28 December 2017; the application against the Board's decision was made in time.
Director of Immigration (the Director)
19. In the Director’s decision dated 30 September 2015, the immigration officer did not make specific finding on the Applicant's credibility. However, even on the strength of the Applicant’s allegations the officer considered the level of risk of harm against the Applicant by his alleged enemies was low. The officer did not accept the AL people had real intention to harm or kill the Applicant. There was no imminent risk.
20. The officer was aware there were reports of police corruption in Bangladesh. However, there was objective country-of-origin information (“COI”) showing reforms and improvements by the government to monitor the conduct of the police. There were also alternative avenues to seek justice in the country. The officer was satisfied reasonable state protection was available to the Applicant. Internal relocation was also viable.
21. The officer did not find the Applicant had any real torture risk, persecution risk or CIDTP risk (BOR3 risk). He refused the Applicant’s claim with respect to those three applicable grounds.
22. Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of the fourth applicable ground, i.e. life risk (BOR2 risk). However, the Applicant did not respond by the deadline or thereafter.
23. In the Director’s further decision dated 3 January 2017, the immigration officer considered that the Applicant failed to establish a personal and real risk of his rights under the HKBOR being violated (including right to life under BOR2). He refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground: life risk (BOR2 risk).
TCAB/NCPO (the Board)
24. The Adjudicator found a number of inconsistent and incredible features in the Applicant’s allegations. He was not satisfied the Applicant's evidence was truthful or reliable.
25. However, even on the strength of the Applicant’s claim the Adjudicator found the level of risk facing the Applicant was low and his feared ill-treatment was unlikely to materialise.
26. Furthermore, the Adjudicator was satisfied that reasonable state protection and internal relocation were available to the Applicant.
27. The Adjudicator did not accept the Applicant faced any real risk that warranted non-refoulement protection. He refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk).
Grounds of judicial review
28. In Enclosure 2 of Form 86, the Applicant complained the Director failed to properly consider the issues of state acquiescence and state protection; failed to appreciate the corruption and incompetence of the administration in Bangladesh; failed to appreciate the misconduct of the Bangladesh police; failed to properly consider relevant country-of-origin information (“COI”); cherry-picked information; rendered unreasonable decisions; failed to attain high standards of fairness.
29. The Applicant accused the Adjudicator failed to make sufficient enquiry; failed to appreciate his limitation in adducing proof; failed to give him sufficient chance to arrange evidence.
Court hearing
30. In Form 86, the Applicant requested a hearing. The hearing took place on 25 May 2018 and 6 June 2018. The Applicant was in person. A Bengali interpreter provided service in court.
31. On 25 May 2018, the Applicant could not confirm the contents of his complaints as stated in Enclosure 2 of Form 86. He said the lawyer who prepared those documents had not explained the contents to him. The matter was adjourned for the Applicant to confirm his complaints.
32. On 6 June 2018, the Applicant said his lawyer had now explained the written contents to him. The Applicant confirmed those complaints were all the grounds of his application for leave for judicial review.
33. The Applicant mentioned he had limitation in adducing proof before the Adjudicator because he had been in custody. I asked him how his being detained would affect his claim. The Applicant said he was originally given recognizance by the Director in July 2013. However, between August 2016 and November 2017 he was imprisoned for illegal employment. Then he was further detained by the Immigration Department for 40 odd days before he got recognizance again. The Applicant said that during detention he could only speak to his friends/relatives in Bangladesh on the phone for 3 minutes per week. He agreed he could have written to ask them to gather proofs for his claim but he did not think of adopting such course then.
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]
36. The Applicant complained he had limitation in adducing proofs because he had been detained.
37. The Applicant was given recognizance by the Director in July 2013. However, between August 2016 and November 2017 he was imprisoned for illegal employment. Then he was further detained by the Immigration Department for 40 odd days before he got recognizance again. The Applicant said that during detention he could only speak to people overseas on phone for 3 minutes per week. He agreed he could have written to them for help to gather proofs for his claim but he failed to do so.
38. The Applicant had first been given recognizance in July 2013. If he really wanted to gather proofs for his claim, he had more than enough time and opportunities to do so between July 2013 and July 2016. The Director screened the Applicant's claim with respect to torture risk, persecution risk and BOR3 risk in August/September 2015. The Applicant was only detained during the period when the Director further considered his claim with respect to BOR2 risk and when the Adjudicator heard his appeal. However, the Applicant could still call or write during custody to his friends/relatives in Bangladesh for assistance if he really had proofs to obtain there. He did not. I do not accept there is any merit in such complaint.
39. The Applicant has other complaints. I have reviewed the Director’s decision plus further decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had duly considered the Applicant’s claim. Their findings, conclusions and decisions were not Wednesbury unreasonable. The Director and the Adjudicator made no errors of law and there was no procedural unfairness. They had each 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 reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and the law. They considered the Applicant’s case carefully and applied the law correctly. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. There is no substance in any of the Applicant's complaints.
Conclusion
40. The Applicant's complaints are not reasonably arguable either against the Director or the Board. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.
Dated 9th day of July 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 9/7/2018
Dewan Aslam
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 9/7/2018
Director of Immigration
1st Putative Respondent’s ref. no.:
QA T/C 2963/16 (formerly RBCZ 9000777/16)
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
2nd Putative Respondent’s ref. no.:
USM 2380/15/10/49/B318
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] Order 53, rule 4 of the Rules of the High Court.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
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