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HCAL740/2018
[2019] HKCFI 1400
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 740 of 2018
BETWEEN
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Md Sahin Miah |
Applicant |
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and |
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Susan Marie Pinto, Esq. |
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 43 (DOB: 10 March 1976).
2. The Applicant claimed he would be harmed or killed by some people of the Bangladesh Nationalist Party (“BNP”).
3. The Applicant joined the Awami League (“AL”) in 2000. He became a member in 2002. He participated in the party’s activities.
4. In late 2002, the Applicant and his cousin Saidul were threatened by three BNP members (Tutul, Kiron and Rahman) to stop taking part in AL’s activities.
5. The Applicant did not make any complaint to the police. He feared the police would bring false accusation against him because BNP was in power.
6. In late 2005, the Applicant and Saidul were assaulted by the three BNP members. The three threatened to kill them if the latter did not stop taking part in AL’s activities.
7. In mid-2006, there was a big fight between BNP and AL. The Applicant and Saidul stayed away from it. However, in 2007 they were encountered by Tutul and some men. The Applicant and Saidul were assaulted. The Applicant managed to escape but Saidul was shot dead. Saidul’s uncle complained to the police but nobody was caught.
8. Being in fear, the Applicant stayed away from home. He knew his enemies were looking for him.
9. In December 2007, the Applicant went to Nepal and then India but asylum was not available in those countries. He returned to Bangladesh and still lived away from home.
10. The Applicant left Bangladesh on 10 March 2008. He went to Macau and then China.
11. On 3 April 2008, the Applicant sneaked into Hong Kong. His boat was intercepted by the police. The Applicant raised a torture claim on 19 April 2008.
12. The Applicant feared his enemies would kill him to prevent him from giving evidence in the murder case of Saidul.
13. The Applicant said state protection and internal relocation were not available to him.
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: risk of torture,[1] risk of persecution,[2] risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and risk of violation of the right to life (BOR2 risk)[4].
15. On 27 April 2018, the Applicant applied for leave for judicial review.
Timeline
16. Things happened in this order: –
| 2008-3-8 |
The Applicant left Bangladesh. He first went to Macau and then China. |
| 2008-4-3 |
The Applicant was caught by the police when his boat entered Hong Kong. |
| 2008-4-19 |
The Applicant raised a torture claim. |
| 2016-11-28 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR2 risk. [“the Director’s decision”] |
| 2018-1-17 |
The Applicant appeared before the Board for appeal. |
| 2018-4-23 |
The Board refused the Applicant's claim with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-4-27 |
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 complaint 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 Applicant named the Adjudicator as respondent and the Director as interested party. The Adjudicator is the putative respondent; the Director is the putative interested party.
The Director's decision
20. In his decision dated 28 November 2016, 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 refused the Applicant’s claim with respect to all the four applicable grounds.
The Board’s decision
21. The Applicant appealed to the Board. The Adjudicator interviewed him.
22. The Adjudicator found the Applicant knew little of AL despite he claimed he had joined it for years.
23. The Adjudicator noted the Applicant returned to Bangladesh after having gone to Nepal and India. She did not believe the Applicant's explanation that he could not seek asylum there.
24. The Adjudicator accepted the Applicant's cousin Saidul was killed by BNP members in 2007 but there was no evidence that Tutul, Kiron and Rahman had been charged. She considered that after all these years the three were unlikely to be still interested in the Applicant. The Adjudicator did not believe the Applicant would be forced to give evidence against the three. She did not accept the Applicant's claim of risk. The Adjudicator also noted from country-of-origin information ("COI") that AL had taken power over BNP.
25. The Adjudicator did not believe the Applicant's claim. She did not accept the Applicant faced torture risk, persecution risk, BOR2 risk or BOR3 risk. On 23 April 2018, she refused the Applicant’s claim with respect to all the four applicable grounds.
Grounds of judicial review
26. 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.
27. 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.
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 17 September 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. He had nothing to add.
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 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 28 November 2016.
37. The Applicant had been represented by the Duty Lawyer Service (“DLS”) up to the Director's decision dated 28 November 2016. He 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 DLS 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.
42. The Applicant said he received the bundle on 10 January 2018. That was 7 calendar days (or 6 working days) prior to the Board hearing scheduled for 17 January 2018. The bundle was served on the Applicant in time.
43. 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.
44. 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.
45. State protection and state acquiescence were not real issues as the Adjudicator did not find the Applicant's claim credible and did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk.
46. 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 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 prospect of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.
Dated the 11th day of June 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
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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 11/6/2019
Md Sahin Miah
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 11/6/2019
Susan Marie Pinto, Esq.
Putative Respondent’s ref. no.:
USM 5449/16/12/96/B690
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1312/08 (formerly RBCZ 892/08)
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 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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