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HCAL900/2018
[2019] HKCFI 1413
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 900 of 2018
BETWEEN
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Hossain Shamim |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
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 34 (DOB: 1 January 1985).
2. The Applicant claimed he would be harmed or killed by people of the Awami League (“AL”).
3. The Applicant said he joined the Bangladesh Nationalist Party (“BNP”) in 1998 and had become actively involved in it since 2007. He later became the Chief President of BNP in the Shutrapur area. Some AL members did not want him to lead BNP there.
4. In 2008/2009, the Applicant was detained three times when AL held gatherings. That was done to suppress opposition from BNP against AL. The Applicant was not assaulted during detention but he met with a lot of verbal abuses.
5. In March 2009, the Applicant was assaulted by twenty odd AL members. He was injured. He reported the matter to the police but the police did nothing.
6. Ten days later, the Applicant was again attacked by ten odd people. He also made a report to the police but there was no result. The Applicant believed the police were influenced by AL.
7. The Applicant complained to the Arbitration Committee of AL but the committee adjudged in favour of AL.
8. Since 2010, the Applicant had constantly received phone calls threatening to kill him if he did not leave the area. He was also stalked. The Applicant thus moved to live in other places in 2011. He was still stalked.
9. The Applicant said the enemies also harassed his family members in Shutrapur. He thought the enemies would catch him one day and the police would only side with them.
10. On 21 March 2012, the Applicant left Bangladesh for China. He sneaked into Hong Kong on 29 March 2012.
11. The Applicant maintained contact with his family in Bangladesh. His mother told him AL was in power and his enemies were still looking for him.
12. The Applicant did not think he would get state protection. He also thought his powerful enemies could locate him anywhere in Bangladesh so internal relocation was not viable.
13. The Applicant raised a torture claim[1] on 31 March 2012. The Director of Immigration (“the Director”) refused his torture claim on 27 July 2012. The Applicant did not appeal.
14. On 18 March 2014, the Applicant lodged a non-refoulement claim.
15. In the ensuing two-tier screening process, 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 the remaining three applicable grounds: 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].
16. On 23 May 2018, the Applicant applied for leave for judicial review.
Timeline
17. Things happened in this order: –
| 2012-3-21 |
The Applicant left Bangladesh for China. |
| 2012-3-29 |
The Applicant was arrested by the police for illegal remaining. He claimed he entered Hong Kong earlier that day. |
| 2012-3-31 |
The Applicant raised a torture claim. |
| 2012-7-27 |
The Director refused the Applicant’s torture claim. [‘the Director's 2012 decision”] (There was no appeal.) |
| 2014-3-18 |
The Applicant lodged a non-refoulement claim. |
| 2017-5-24 |
The Director refused the Applicant’s non-refoulement claim with respect to the remaining three applicable grounds: persecution risk, BOR3 risk and BOR2 risk. [‘the Director's 2017 decision”] |
| 2018-2-23 |
The Applicant appeared before the Board for appeal. |
| 2018-4-25 |
The Board refused the Applicant's claim with respect to the remaining three applicable grounds: persecution risk, BOR3 risk and BOR2 risk. [“the Board’s decision”] |
| 2018-5-23 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
18. 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.
19. 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]
20. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board as respondent and the Director as interested party. The Board is the putative respondent; the Director is the putative interested party.
The Director's decision
21. On 27 July 2012, the Director refused the Applicant's torture claim. The Applicant did not appeal against that decision.
22. The Applicant subsequently raised a non-refoulement claim. In his decision dated 24 May 2017, the Director did not accept the Applicant faced any 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 those three remaining applicable grounds.
The Board's decision
23. The Applicant appealed against the Director’s 2017 decision on persecution risk, BOR2 risk and BOR3 risk.
24. The Adjudicator interviewed the Applicant on 23 February 2018. He found there were many contradictory and inconsistent features between the Applicant’s questionnaire submitted to the Director and his evidence given in the Board hearing. The Applicant’s explanations were unconvincing. The Adjudicator concluded the Applicant was not a reliable witness.
25. The Adjudicator did not accept the Applicant faced any persecution risk, BOR3 risk or BOR2 risk. On 25 April 2018, he refused the Applicant's appeal with respect to those three 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 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. The Applicant said he was confused of what happened. He complained the Adjudicator failed to make appropriate arrangement.
28. The Applicant further complained the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay.
Court hearing
29. The hearing took place on 27 August 2018. The Applicant was in person. A Bengali interpreter provided service in court.
30. The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents.
31. The Applicant said he could not submit documents on time to the Board. He also said the Adjudicator interviewed him for a long time, putting pressure on him and only gave him little time to answer either ‘yes’ or ‘no’. He could not remember many details of his case during the interview so he was unable to answer the Adjudicator properly. The Applicant said that accounted for his inconsistencies and caused the Adjudicator not to believe him.
Discussion
32. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
33. 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]
34. The Applicant mentioned he was not legally represented for the appeal. He had been represented by the Duty Lawyer Service up to the Director's decision dated 24 May 2017.
35. 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.
36. 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, he was assisted by qualified interpreters while he was still represented by the Duty Lawyer Service and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
37. The Applicant complained he received the appeal bundle only a few days before the Board hearing.
38. 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.
39. The Applicant said the Director served the appeal bundle on him on 15 February 2018 before the Board hearing scheduled for 23 February 2018. That was 8 calendar days prior to the Board hearing. However, there were only 4 working days in that period because of the three days of Lunar New Year Holiday and one Sunday.
40. Nevertheless, 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.
41. 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. There was no evidence to support the Applicant’s saying that he could not well prepare his appeal due to shortage of time.
42. The Applicant said he answered all the questions honestly in the Board hearing.[11] That would mean he knew well what was asked and how to answer. He was not confused.
43. There was no evidence the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay.
44. The Applicant said he could not submit documents on time to the Board. His allegation was vague. He did not say what documents he would like to submit and how relevant they were. He had no such documents to show the court. Actually, he told the Adjudicator in the Board hearing that he had no further documents to support his claim.[12]
45. The Applicant said the Adjudicator interviewed him for a long time, putting pressure on him and gave him only little time to answer either ‘yes’ or ‘no’. He could not remember many details of his case during the interview so he was unable to answer the Adjudicator properly. The Applicant said that accounted for his inconsistencies and caused the Adjudicator not to believe him.
46. The Adjudicator’s report showed the Adjudicator had made detailed inquiry of the Applicant’s claim. The Applicant responded to the Adjudicator’s questions and clarified matters raised by the Adjudicator.[13] The Applicant was not made to answer just ‘yes’ or ‘no’.
47. The Adjudicator found the Applicant inconsistent not because he was forgetful but that there were many contradictions between his questionnaire submitted to the Director and his oral evidence given in the Board hearing. The Adjudicator noted the Applicant offered material facts in his oral evidence and those facts were not found in his questionnaire, SCF or interview by the Director.[14]
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 prospects of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.
Dated the 18th 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 18/6/2019
Hossain Shamim
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 18/6/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7372/17/6/68/B854
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 472/12 (formerly RBCZ 329/12) &
QA T/C 734/17 (formerly RBCZ 3000743/14)
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.
[11] The Applicant's affirmation, Point 8 on page 3.
[12] The Board’s decision, para 11.
[13] The Board's decision, para 11.
[14] The Board’s decision, para 51.
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