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HCAL613/2018
[2019] HKCFI 1901
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 613 of 2018
BETWEEN
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Sahabuddin |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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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 42 (DOB: 1 January 1977).
2. The Applicant claimed he would be harmed or killed by his enemies: (i) Ratan, the ex-chairman of the Awami League (“AL”) in the area called Ward 42; (ii) Shamsul Haque (“Shamsul”), the ex-chairman of the Bangladesh Nationalist Party (“BNP”) in Ward 29 [now known as Ward 42] and (iii) Omar Faruque (“Omar”), the chairman of AL in Ward 29, Dhaka.
3. The Applicant said he had been participating in the activities of a political party called the Jatiyo Party (“JP”) since late 1999. He was enthusiastic and could mobilize people to attend JP’s meetings and rallies. Ratan, the AL chairman of Ward 42 noticed that. In mid-2000, Ratan asked the Applicant to join AL. The Applicant refused.
4. AL was the ruling party in Bangladesh at that time. The Applicant said Ratan could make the police work for him. Ratan sent some policemen to the Applicant's home to harass him but the Applicant was not there. Ratan told the Applicant on the phone that he could make the police arrest him.
5. The Applicant believed it was no use to ask the police for protection.
6. In 2001, AL lost power. So did Ratan. BNP became the ruling party.
7. In late 2003, Shamsul (the BNP chairman in Ward 42) asked the Applicant to join BNP. The Applicant refused despite Shamsul’s repeated requests. One day, Shamsul brought a number of people to close down the Applicant's work site. The Applicant was not there. The men beat up the workers at the site and threatened to kill the Applicant if they found him.
8. The Applicant feared for his safety. He left Dhaka to stay with a friend.
9. On 29 January 2004, the Applicant left Bangladesh to work in Doha, Qatar. He worked there until 2007. When his visa expired, the Applicant overstayed in Doha. He was arrested by the police and repatriated to Bangladesh in January 2010.
10. In 2011, the Applicant teamed up with his JP friends again. AL had resumed power by then. Omar was the local AL chairman in the area. He could control the police. He asked the Applicant to join AL. The Applicant refused.
11. In early 2012, Omar started sending police officers to harass the Applicant. He said he could have the Applicant arrested and killed. The Applicant was scared but he would not seek police assistance. He feared the police would arrest him.
12. In March/April 2012, the Applicant came upon Shamsul. Shamsul asked the Applicant to join BNP or to donate money to BNP, otherwise the Applicant would be killed. The Applicant did not accede to Shamsul’s request. Later, he was confronted by some people sent by Shamsul including members of a terrorist group. They beat the Applicant up. Someone even fired a few shots to scare him. They demanded the Applicant should join BNP and donate money to BNP or they would kill him. The Applicant asked for time. The men then left.
13. The Applicant felt it was not safe to stay in Dhaka. He moved to live elsewhere but still came upon his enemies.
14. The Applicant left Bangladesh for China on 21 November 2012. He did not seek protection in China. On 28 November 2012, he sneaked into Hong Kong. He was arrested on the next day.
15. The Applicant raised a torture claim[1] on 1 December 2012. His torture claim was refused by the Director of Immigration (“the Director”) on 22 May 2013. There was no appeal.
16. The Applicant lodged a non-refoulement claim on 10 June 2013.
17. In the ensuing 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 non-refoulement 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].
18. On 11 April 2018, the Applicant applied for leave for judicial review.
Timeline
19. Things happened in this order: –
| 2012-11-21 |
The Applicant left Bangladesh for China. |
| 2012-11-28 |
The Applicant entered Hong Kong illegally. |
| 2012-11-29 |
The Applicant was arrested by the police. |
| 2012-12-1 |
The Applicant lodged a torture claim. |
| 2013-5-22 |
The Director refused the Applicant’s torture claim. There was no appeal. |
| 2013-6-10 |
The Applicant raised a non-refoulement claim. |
| 2017-9-14 |
The Director refused the Applicant’s claim with respect to the remaining three applicable grounds: (i) persecution risk, (ii) BOR2 risk and (iii) BOR3 risk. [“the Director's decision’] |
| 2018-3-2 |
The Applicant appeared before the Board for appeal. |
| 2018-3-21 |
The Board refused the Applicant's claim with respect to the remaining three applicable grounds: (i) persecution risk, (ii) BOR2 risk and (iii) BOR3 risk. [“the Board's decision’] |
| 2018-4-11 |
The Applicant applied for leave for judicial review. |
Respondent/ Interested party
20. 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.
21. 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]
22. In Form 86, 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
23. On 1 December 2012, the Applicant lodged a torture claim. The Director refused his torture claim on 22 May 2013. There was no appeal.
24. On 10 June 2013, the Applicant raised a non-refoulement claim. On 14 September 2017, the Director refused his non-refoulement claim with respect to the remaining three applicable grounds: persecution risk, BOR2 risk and BOR3 risk.
The Board’s decision
25. The Applicant only appealed against the Director's 2017 decision to the Board. The Adjudicator interviewed him on 2 March 2018.
26. The Adjudicator found there were inconsistent, contradictory and implausible features in the Applicant’s claim. The Adjudicator found there was no evidence to support the Applicant’s allegation that he had been harassed for so many years or that he had been inflicted with severe ill-treatment. There was no evidence of state instigation. The Adjudicator did not accept the Bangladesh police had targeted the Applicant. He noted the Applicant had stayed in Qatar for six years but failed to seek protection there. The Adjudicator found the Applicant incredible and did not believe his claim. In any event, the Adjudicator found reasonable state protection and internal relocation were available to the Applicant. He did not accept the Applicant faced any persecution risk, BOR2 risk or BOR3 risk. On 21 March 2018, the Adjudicator refused the Applicant's non-refoulement claim with respect to those three applicable grounds.
Grounds of judicial review
27. 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.
28. 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.
29. The Applicant further complained the Adjudicator relied on outdated cases, information not officially recognized or simply hearsay.
Court hearing
30. The hearing was scheduled for 31 July 2018. The Applicant claimed he hurt himself in an accident and had to go to hospital. The matter was rescheduled for 20 September 2018. The Applicant had been duly informed of the new hearing date. He was, however, absent from the refixed hearing with no explanation.
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] 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]
33. The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 14 September 2017. He complained there was no legal representation thereafter.
34. 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 his case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
35. The Applicant complained there was a lack of language assistance.
36. It is trite that the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.[9]
37. In any event, the Applicant had Form 86 and the affirmation prepared in English. Apparently, he could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant 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.
38. The Applicant complained he received the appeal bundle only a few days before the Board hearing.
39. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[10] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[11], 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.
40. The Applicant said he received the appeal bundle on or about 23 February 2018. That was 7 calendar days (or 6 working days) prior to the Board hearing scheduled for 2 March 2018. The bundle was served on the Applicant in time.
41. 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.
42. 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.
43. The Applicant alleged he was confused in the Board hearing. Yet, he said he answered honestly all the questions asked by the Adjudicator. [12] That meant he knew what was asked and how to answer in the Board hearing. He was not confused.
44. The Applicant complained the Adjudicator had relied on outdated cases or information not officially recognised or simply hearsay. There was no evidence of that. The Applicant failed to give specifics.
45. 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
46. 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 30th day of July 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
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 30/7/2019
Sahabuddin
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 30/7/2019
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8641/17/9/313/B987
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1696/17 (formerly RBCZ 2000552/14)
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] Re Zaman Muhammad [2018] HKCA 486 at [13]; also Re Gurnishan Singh [2018] HKCA 704 at [13].
[10] 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.
[11] 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.
[12] The Applicant’s affirmation, Point 8 on page 4.
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