HOSSAIN MUKTER v. HAU CHEUK-MAN, ESQ.

HCAL717/2018

[2019] HKCFI 861

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 717 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)

Following:

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 33 (DOB: 18 May 1985). 

2.  The Applicant claimed he would be harmed or killed by the Awami League (“AL”) because he was a member of the Chhatra Shibir (“CS”), which was the student wing of Jamaat-e-Islami (“JI”). There were conflicts between AL and JI.

3.  The Applicant became a member of CS in May 2010.

4.  In February 2011, the Applicant was confronted by ten odd men in the street. The men threatened him. He suspected them to be AL members but he did not report the matter to the police. He feared the matter might get worse if he so complained.

5.  In September 2011, the Applicant was in a rally jointly organised by CS, JI and the Bangladesh Nationalist Party (“BNP”). They were stopped by some AL people. A fight broke out. The Applicant's side were assaulted by AL, the police and the Rapid Action Battalion (“RAB”). The Applicant was injured. He managed to escape and went to a clinic to seek treatment. He did not make any report to the police. He thought the police were on AL’s side.

6.  The Applicant said the Bangladesh police harassed the Muslims. The Applicant had been questioned by the police in the street a few times. He felt his life was in danger so he left his boarding house to live elsewhere.

7.  In late December 2011, the Applicant heard the police and RAB had arrested some CS members in the boarding house where he had stayed. He then fled to his parents’ village. The Applicant learnt the AL people persecuted supporters of CS, JI and BNP.

8.  In February 2012, the Applicant was confronted by 4 - 5 men. They asked him if he was related to CS. The Applicant answered in the affirmative. Those men threatened to kill him if he continued to get involved with CS. The Applicant was scared. He left the village and went to Dhaka.

9.  On 1 August 2012, the Applicant left Bangladesh for India. His travel agent tried to arrange for him to go to Taiwan but the Applicant failed to get a visa. He returned to Bangladesh on 19 August 2012.

10.  The Applicant claimed to be under so much stress that he had to take medication.  On 4 April 2013, he left Bangladesh for China. He sneaked into Hong Kong in late October 2013.

11.  The Applicant was arrested on 6 November 2013. He applied for non-refoulement protection subsequently.

12.  The Applicant last contacted his family when he was in China. He learnt from the internet that AL was still persecuting the opposition people.

13.  The Applicant did not think he could get state protection in Bangladesh. He also said 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 25 April 2018, the Applicant applied for leave for judicial review.

Timeline

16.  Things happened in this order: –

2013-4-4	The Applicant left Bangladesh for China.
Oct 2013	The Applicant sneaked into Hong Kong from China.
2013-11-6	The Applicant was arrested by the police for illegal remaining.
2013-11-8	The Applicant filed a non-refoulement claim.
2016-2-23	The Director refused the Applicant’s claim with respect to these three applicable grounds: torture risk, persecution risk and BOR3 risk. [‘the Director's decision”]
2016-11-1	The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk.
2016-11-15	The Applicant failed to submit additional facts by the deadline or thereafter.
2016-11-23	The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [‘the Director's further decision”]
2016-12-16	The Applicant appeared before the Board for appeal.
2018-4-18	The Board refused the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”]
2018-4-25	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 23 February 2016, the Director did not accept the Applicant faced any torture risk, persecution 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 those three applicable grounds.

21.  In his further decision dated 23 November 2016, the Director did not accept the Applicant faced any BOR2 risk. He refused the Applicant’s non-refoulement claim with respect to that last applicable ground.

The Board's decision

22.  The Applicant appealed to the Board. The Adjudicator interviewed him on 16 December 2016.

23.  The Adjudicator accepted the Applicant had been involved in conflicts with some AL people and he was ill-treated. However, he was not satisfied the Applicant had been inflicted with suffering to the minimum level of severity. The Adjudicator also did not accept the Applicant was targeted by the state. There was no state involvement, consent or acquiescence. The Adjudicator considered that while some individual police officers might take side with AL, there was no evidence the Bangladesh state could not provide reasonable protection to the Applicant should he duly make a report of his case to the authorities. The Adjudicator found the complained situation was only related to conflicts with some AL people. It was not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion).

24.  The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. In any event, reasonable state protection was available to the Applicant.

25.  On 18 April 2018, the Adjudicator refused the Applicant's appeal with respect to all the four applicable grounds.

Grounds of judicial review

26.  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.

27.  The Applicant accused the Adjudicator misdirected himself; 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 violation 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.

28.  The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of or insufficient legal representation.

29.  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.

30.  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

31.  The hearing took place on 9 August 2018. The Applicant was in person. A Bengali interpreter provided service in court.

32.  The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. The Applicant had nothing to add to his grounds.

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.  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 BOR2 risk in his further decision dated 23 November 2016. The Applicant had not provided additional information to the Director after the Director's decision dated 23 February 2016. The Director was entitled to go on to consider BOR2 risk without holding further interview. The Director's further decision must be read in conjunction with his earlier decision, where there was a clear analysis of the Applicant's case.

37.  The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 23 February 2016.  The Applicant complained there were failures by the assigned duty lawyer. However, he failed to specify what the failures were.

38.  The Applicant complained there was a lack of 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.

39.  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 interpreters when he was represented by the Duty Lawyer Service and in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

40.  The Applicant complained he received the appeal bundle only a few days before the Board hearing.

41.  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. There was no evidence the rules had been breached.

42.  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.

43.  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.

44.  The Adjudicator had considered the issues of state protection and state acquiescence. He did not accept there was any state instigation, consent or acquiescence. He also did not accept the Bangladesh state was unwilling or unable to provide state protection to the Applicant. The Adjudicator’s finding was not Wednesbury unreasonable.

45.  The Applicant failed to prove there was necessity to call for psychological or psychiatric reports. He also failed to prove there existed in Bangladesh a consistent pattern of gross, flagrant or mass violation of human rights.

46.  There was no evidence the Adjudicator cherry-picked information or took into account outdated cases, irrelevant information, information not officially recognised or simply hearsay.

47.  There was also no evidence the Adjudicator misdirected himself in law or adopted the wrong standard of proof.

48.  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

49.  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.

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

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.