MOHAMMED RONI KHAN v. LI WAI CHI, ESQ.

HCAL721/2018

[2019] HKCFI 533

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 721 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)

Following:

	consideration of documents only
	consideration of documents and oral submission by the Applicant in open court

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 38 (DOB: 1 January 1981). 

2.  The Applicant claimed he would be harmed or killed by people of the Awami League (“AL”). He was a member of the Bangladesh Nationalist Party (“BNP”). He refused to join AL.

3.  The Applicant said he became a BNP member in 2004. There were fights among different political parties in the country. The Applicant had taken part in the fights.

4.  In late 2005 and early 2006, the Applicant assisted a BNP candidate Momin to canvass support from voters in the parliamentary election. There was another candidate called Mahi in his constituency. He was an independent candidate but had the support of AL.

5.  In early 2006, the Applicant and his BNP comrades were working for their campaign. They were warned by some AL people and told to disappear.

6.  On the election day, the Applicant and a few BNP members ignored the AL people’s warning. They continued with their campaign work. About 20 AL people attacked them. Some BNP member was severely injured. The Applicant managed to escape.

7.  BNP lost the election. A week later, the Applicant was confronted by a group of AL people. They asked the Applicant to join their party. He refused. Those people threatened to kill him if they should see him again.

8.  The Applicant hid himself at home. He was deeply disturbed but he did not report the matter to the police. He thought the police would side with the AL people.

9.  Some days later. The same group went to the Applicant’s home. They shouted and asked to see the Applicant. The Applicant dared not meet them.

10.  The Applicant's father felt his son was in danger. He arranged for the Applicant to leave Bangladesh.

11.  In April 2006, the Applicant left Bangladesh for India and then went to Nepal. He could not get to Hong Kong on that occasion so he returned to Bangladesh.

12.  On 3 May 2006, the Applicant managed to come to Hong Kong from Bangladesh as visitor. He was allowed to stay until 17 May 2006. However, he overstayed.

13.  Sometime in 2006, the Applicant submitted a refugee application to UNHCR but he failed to follow that up.

14.  Three years later, on 1 November 2009, the Applicant was arrested by the police for overstaying. He lodged a torture claim[1] on 3 November 2009. The Applicant said he had not done so before he was arrested because he did not know how the system worked.

15.  The Applicant learnt from his family in Bangladesh that the AL people did not come again after he had left the country. However, he still feared he would be killed by his enemies. He thought they could easily find him in Bangladesh. 

16.  The Applicant did not think the Bangladesh authorities would protect him because AL was in power.

17.  The Applicant's torture claim was refused by the Director of Immigration (“the Director”) in August 2013. In October 2013, his appeal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) was refused.

18.  The Applicant lodged a non-refoulement claim in June 2013.

19.  In the ensuing two-tier screening process here, the Director and the Board respectively refused the Applicant’s claim with respect to the remaining three applicable grounds: (i) risk of persecution,[2] (ii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3]  and (iii) risk of violation of the right to life (BOR2 risk)[4].

20.  On 25 April 2018, the Applicant applied for leave for judicial review.

Timeline

21.  Things happened in this order: –

2006-5-3	The Applicant arrived in Hong Kong from Bangladesh as visitor. He was permitted to stay for 14 days.
2006-5-18	The Applicant began overstaying in Hong Kong.
2009-11-1	The Applicant was arrested by the police.
2009-11-3	The Applicant filed a torture claim.
2013-6-7	The Applicant lodged a non-refoulement claim
2013-8-16	The Director refused the Applicant's torture claim.
2013-10-10	The Board refused the Applicant's appeal on torture claim.
2016-5-25	The Director refused the Applicant’s non-refoulement claim with respect to these two applicable grounds:(i) persecution risk and (ii) BOR3 risk. [“the Director’s decision”]
2017-5-15	The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. The Applicant and the duty lawyer who continued to represent him made further submission on 29 May 2017 and 5 July 2017 respectively.[5]
2017-7-12	The Director refused the Applicant's non-refoulement claim with respect to the last applicable ground: BOR2 risk. [“the Director's further decision”]
2018-3-1	The Applicant and his lawyer appeared before the Board for appeal.
2018-4-9	The Board refused the Applicant’s appeal with respect to the remaining three applicable grounds.  [“the Board’s decision”]
2018-4-25	The Applicant applied for leave for judicial review.

Respondent/Interested party

22.  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.

23.  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.”[6]

24.  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 the putative respondent; the Director is the putative interested party.

The Director's decision

25.  In 2013, the Director refused the Applicant's torture claim. [The Board refused the Applicant's appeal on torture claim. That 2013 decision is not the subject matter of the Applicant's current application for leave for judicial review.]

26.  Regarding the Applicant's subsequent non-refoulement claim, the Director in his decision dated 25 May 2016 did not accept the Applicant faced any 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 two applicable grounds.

27.  On 12 July 2017, the Director did not accept the Applicant faced any BOR2 risk. He refused the Applicant’s non-refoulement claim with respect to the last applicable ground.

The Board's decision

28.  The Applicant appealed against the Director's 2016 decision and the Director's 2017 further decision to the Board. The Adjudicator interviewed him on 1 March 2018. The Applicant was represented by a duty lawyer.

29.  The Adjudicator considered the Applicant's evidence and his counsel’s submission. He found the Applicant changed his evidence over time. There were inconsistent and unconvincing features in the Applicant's allegations. The Adjudicator considered the Applicant's proofs unreliable and his claim incredible. The Applicant failed to establish any persecution risk, BOR2 risk or BOR3 risk.  

30.  The Adjudicator referred to relevant country-of-origin information ("COI"). He was satisfied reasonable state protection and internal relocation were available to the Applicant in any event.

31.  On 9 April 2018, the Adjudicator refused the Applicant's appeal with respect to these three applicable grounds: persecution risk, BOR2 risk and BOR3 risk.

Grounds of judicial review

32.  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.

33.  The Applicant accused the Adjudicator misdirected himself in law; failed to make sufficient inquiry; failed to consider updated or relevant 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.

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

Court hearing

35.  The hearing took place on 2 August 2018. The Applicant was in person. A Bengali interpreter provided service in court.

36.  The Applicant applied for legal aid on 23 May 2018. The Director of Legal Aid refused his application on 27 July 2018. The Applicant said he did not receive the refusal notice but someone from the Legal Aid Department told him on the phone that he could reapply for legal aid. He thus reapplied for legal aid five days later on 1 August 2018. The Applicant said he wanted a lawyer to represent him.

37.  The Director of Legal Aid had already refused the Applicant's application in July 2018. I do not believe someone from the Legal Aid Department asked the Applicant to reapply for legal aid. The Applicant's repeated application of legal aid just before the current hearing was unjustified. In such circumstance, the normal 42-day stay under s.15(4) of the Legal Aid Ordinance, Cap. 91 should be lifted. The current application for leave for judicial review ought to proceed without delay.

38.  The Applicant said a friend helped him to prepare Form 86 and his affirmation. The Applicant confirmed all the grounds of judicial review were in the documents. He could not elaborate any of those grounds or give more particulars of his complaints.

39.  The Applicant also confirmed he had submitted all to the Director and the Adjudicator for their consideration of his non-refoulement claim.

Discussion

40.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

41.  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’.[7]  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.” [8]

42.  The Applicant complained there were a lack of and/or insufficient legal representation. However, he had been represented by the Duty Lawyer Service at all stages of the two-tier screening process.

43.  The Applicant complained there were failures by the assigned duty lawyer. Yet, he failed to specify what the failures were. The Adjudicator disbelieved the Applicant's claim. He found there was no risk faced by the Applicant. There was no need then 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.

44.  For the same reason, there was no need to consider state acquiescence. Nevertheless, the Adjudicator on balanced study of COI found reasonable state protection and internal relocation were both available to the Applicant in any event.

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

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

47.  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

48.  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.

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