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HCAL1153/2017
[2018] HKCFI 1325
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1153 of 2017
BETWEEN
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Haque Azizul |
Applicant |
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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 33 (DOB: 11 Aril 1985).
2. The Applicant claimed he would be harmed or killed by members of the Chatro League (“CL”). CL was the student wing of the Awami League (“AL”), which was the ruling party in Bangladesh. The Applicant himself was a member of Chatra Shibir (”CS”), which was a student wing of Jamaat-e-Islami (“JL”).
3. The Applicant said he became a member of CS in 2006 though he was not a student. He participated actively in the activities of CS.
4. In 2011, CS lost power. Some CL people often came to the Applicant’s shop to demand protection money. The Applicant refused to pay and quarrelled with those people. He was threatened and assaulted. Those people threatened to kill the Applicant, burn down his shop and kidnap his son.
5. Due to constant harassment, the Applicant was unable to conduct his business properly. He became stressful due to the mental torture. From mid-2013 onwards, the Applicant rarely returned to his shop. He handed over his business to his father. He became more involved in politics. His father told him that the CL people came to look for him from time to time. They threatened to kill the Applicant. The Applicant believed it was because of his political affiliation with CS.
6. The Applicant had reported the matter to the police a few times in 2013. However, the two police officers dealing with his case simply asked him to settle the matter with CL. The police refused to take any action.
7. On 13 January 2014, the Applicant was kidnapped by some CL people. They tied him up and assaulted him. The Applicant was beaten to unconsciousness. When he regained his consciousness, the attackers had gone. The Applicant managed to free himself. Nine days later, he went to the police station to report the matter. He incidentally saw his CL enemies at the entrance of the police station. The Applicant believed they controlled the police, so he left the police station without making any report.
8. Shortly afterwards, the Applicant went to Dhaka to live with his sister. He only returned home briefly on some occasions. He tried to avoid his enemies as much as possible.
9. On 27 February 2014, the Applicant left Bangladesh for China. The situation in China was not good, so he did not apply for non-refoulement protection there. On 18 March 2014, he went back to Bangladesh and stayed in Dhaka.
10. On 14 August 2014, the Applicant left Bangladesh by air for China again. Three days later, he entered Hong Kong illegally by boat. He was arrested by the police. Subsequently, he 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: –
2014-2-27 The Applicant left Bangladesh for China. He did not apply for non-refoulement protection in China.
2014-3-18 The Applicant returned to Bangladesh from China.
2014-8-14 The Applicant left Bangladesh for China again with intent to go to Hong Kong.
2014-8-17 The Applicant entered Hong Kong by boat illegally. He was arrested by the police.
2014-8-20 The Applicant raised a non-refoulement claim.
2017-2-9 The Applicant submitted the first set of completed answers to the director.
2017-3-23 The Applicant failed to proceed with a screening interview, claiming sick.
2017-4-25 The Applicant returned the second set of completed answers to the Director.
2017-6-30 The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (BOR3 risk) and (iv) life risk (BOR2 risk).
2017-12-12 The Applicant appeared before the Board for appeal.
2017-12-15 The Adjudicator refused Applicant’s claim with respect to all the four applicable grounds.
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) [Folio 1], the Applicant named the Director and the Adjudicator as respondents.
16. The Adjudicator did not act in her personal capacity. She represented the Board. In court, the Applicant agreed 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 was 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 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 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 June 2017, the immigration officer did not accept the Applicant's claim was credible. But even on the strength of the Applicant’s claim, the officer considered there was insufficient evidence to show the Applicant would be ill-treated upon his return to Bangladesh. The officer found there were no reasonable grounds for believing the Applicant would face any real or imminent risk of his being harmed or killed.
20. On the other hand, the officer found reasonable state protection and internal relocation were available to the Applicant in Bangladesh.
21. The officer was not satisfied there was any real risk in the Applicant’s case that warranted non-refoulement protection. He refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (BOR3 risk) and (iv) life risk (BOR2 risk).
TCAB/NCPO (the Board)
22. The Adjudicator found a number of inconsistent, unconvincing, questionable and far-fetched features in the Applicant’s version. She found the Applicant untruthful and his claim incredible. She did not accept the Applicant was a member of CS or that he would be harmed or killed by his alleged enemies. The Adjudicator considered there was no real risk faced by the Applicant that warranted non-refoulement protection.
23. Since the Adjudicator found the Applicant’s claim was untrue, she considered that it was not necessary for her to go on to discuss state protection or internal relocation.
24. On 15 December 2017, the Adjudicator refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.
Grounds of judicial review
25. In Enclosure 2 of Form 86, the Applicant complained the Director failed to properly consider the issue 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; being prejudicial and unfair; rendered unreasonable decisions.
26. 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
27. In Form 86, the Applicant requested a hearing. The hearing took place on 25 May 2018 and 1 June 2018. The Applicant was in person. A Bengali interpreter provided service in court.
28. In court, the Applicant said his main complaint was that the Adjudicator delivered her decision too soon. He believed the Adjudicator had not verified his proofs or investigated his claim properly. He accused the Adjudicator of making up her mind without due consideration of the evidence.
29. The Applicant said he did not have enough time to gather all his proof when he left Bangladesh. In Hong Kong, he had been detained in prison and immigration detention centre from April 2016 to March 2017 and also from June 2017 to January 2018. Nevertheless, he confirmed that he had submitted all he had to the Director and the Adjudicator for their consideration of his non-refoulement claim.
30. The Applicant said he would have liked to submit more proofs, which were some 2013 Bangladesh newspaper photographs and cuttings. However, he never had those proofs. He only heard about them after he was released from custody. However, they had now been erased from the internet and were no longer available.
Discussion
31. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
32. 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]
33. The Applicant had been detained for one reason or another for some time in prison or immigration detention centre. However, he confirmed he had submitted all the proofs he had to the Director and the Adjudicator for their consideration of his non-refoulement claim. The so-called 2013 newspaper photos and cuttings which the Applicant now says he would have also wanted to submit as proof were only alleged to be once in existence. The Applicant had never possessed or even seen them. I am not satisfied the Applicant had been deprived of any chance to fully prove his claim to the Director and the Adjudicator.
34. The Adjudicator rendered her decision only three days after the appeal hearing. The Applicant accused the Adjudicator of not considering his claim carefully and fully.
35. In her report dated 15 December 2017, the Adjudicator clearly stated how she viewed and decided on the Applicant’s claim. She was vivid to the facts and the law. She was alive to the issues of the Applicant’s claim. There is no evidence that she was casual or reckless or prejudicial in her decision. The Applicant’s case was a simple one. It was not unreasonable for the Adjudicator to render her decision just three days after the appeal hearing. The Applicant's complaint has no basis.
36. The Applicant's other complaints against the Adjudicator and the Director are vague. I have reviewed the Adjudicator’s decision and the Director's decision under ‘rigorous examination and anxious scrutiny’. I am satisfied that the Director and the Adjudicator had proper basis for their respective findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in any of the Applicant’s complaints against the Director or the Adjudicator, who 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.
Conclusion
37. 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 22nd day of June 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 22/6/2018
Haque Azizul
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 22/6/2018
Director of Immigration
1st Putative Respondent’s ref. no.:
QA T/C 287/16 (formerly RBCZ 2723/14)
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
2nd Putative Respondent’s ref. no.:
USM 7832/17/7/213/B898
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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