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HCAL483/2018
[2018] HKCFI 2574
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 483 of 2018
BETWEEN
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Hashem Ali |
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 39 (DOB: 28 November 1979).
2. The Applicant claimed he would be harmed or killed by the Bampanthi, who were affiliated with the Bangladesh Nationalist Party (“BNP”). The Applicant refused to join them or donate money to them.
3. BNP was the ruling party in Bangladesh from 1991 to 1995 and from 2002 to 2006. Many small political parties were associated with BNP. One of them was the Bampanthi.
4. The Applicant said he joined the Awami League (“AL”) as supporter in 1995. Since then, he had been constantly harassed by the Bampanthi members. They would come 2 - 3 times a month to ask him to support their party and to make donation. They threatened that the Applicant would not be allowed to do business if he refused. They also threatened to beat up the Applicant if he did not listen to them.
5. In 2003, some Bampanthi members went to the Applicant’s shop to ask for donation. The Applicant refused their demand. Those people threatened the Applicant that he would face troubles. Later, a few Bampanthi members came again to repeat their demand. When the Applicant refused, they assaulted him.
6. The Applicant’s brother made a report to the police. However, he was threatened by the Bampanthi assailants to withdraw the complaint.
7. The Applicant thought his enemies were powerful and could influence the police. The police indicated there would be more troubles if the Applicant complained the Bampanthi.
8. In early 2004, the Bampanthi people came again to ask for donation. They threatened to kill the Applicant if he would not meet their demand. Such harassment went on for some time. The Applicant then moved to Dhaka and stayed there for two years. The Bampanthi people pressurised the Applicant’s brother to lure the Applicant back.
9. The Applicant feared his enemies would eventually kill him. He decided to leave Bangladesh. On 27 August 2006, he arrived in Hong Kong as visitor. He was allowed to stay for 14 days. However, he overstayed from 11 September 2006. The Applicant was arrested 15 months later on 26 December 2007. He raised a torture claim on 2 January 2008.
10. The Applicant said he did not feel safe anywhere in Bangladesh because his enemies had network in the country to find him easily. He said his wife was so scared of the Bampanthi people that she also left home shortly after he had come to Hong Kong.
11. 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: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
12. On 26 March 2018, the Applicant applied for leave for judicial review.
Timeline
13. Things happened in this order: –
| 2006-8-27 |
The Applicant entered Hong Kong as visitor. He was allowed to stay for 14 days. He did not leave accordingly. |
| 2006-9-11 |
The Applicant began overstaying in Hong Kong. |
| 2007-12-26 |
The Applicant was arrested by the police. |
| 2008-1-2 |
The Applicant raised a torture claim. |
| 2015-5-14 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) BOR3 risk. [“the Director's decision”] |
| 2017-5-17 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-5-31 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-6-5 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [“the Director's further decision”] |
| 2017-12-7 |
The Applicant appeared before the Board for appeal. |
| 2018-3-14 |
The Board refused the Applicant's appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-3-26 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
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 case on a rehearing basis.
15. 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]
16. 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. Thus, the Board is the putative respondent; the Director is the putative interested party.
The Director's decision
17. In the Director's decision dated 14 May 2015, the Director did not accept the Applicant faced any torture risk, 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 claim with respect to those three applicable grounds.
18. On 5 June 2017, the Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk.
The Board's decision
19. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 7 December 2017.
20. The Adjudicator found there were inconsistent, exaggerating and unconvincing features in the Applicant’s allegations. He did not find his claim credible.[6]
21. Even on the Applicant's version of events, the Adjudicator considered the Applicant did not suffer serious injuries. The alleged enemies could easily kill the Applicant if they so wanted. However, they did not. The Adjudicator therefore found the Bampanthi people had no intention to kill or seriously harm the Applicant.[7]
22. The Adjudicator found there was no evidence to show the Bampanthi was a powerful political group or that they could influence the police.[8] The Adjudicator did not accept reasonable state protection was not available to the Applicant.[9]
23. The Adjudicator considered that any risk of harm from the Bampanthi would be localised. The Applicant could stay away such harm by moving to live in Dhaka, where he had stayed for two years uneventfully. The Adjudicator did not accept the alleged enemies would seek the Applicant out anywhere in Bangladesh. There was no reliable evidence that they were still after the Applicant. The Adjudicator considered internal relocation was available to the Applicant.[10]
24. The Adjudicator found the Applicant failed to establish any risk that warranted non-refoulement protection. On 14 March 2018, he refused the Applicant's claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk.
Grounds of judicial review
25. In Form 86 and his affirmation, 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.
26. 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.
27. The Applicant further complained the Adjudicator relied on outdated cases and information not officially recognised or simply hearsay.
Court hearing
28. The hearing took place on 9 July 2018. The Applicant was in person. A Bengali interpreter provided service in court.
29. The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. The Applicant had nothing to add to those grounds.
30. The Applicant said he had not been able to get all the proofs he wanted to gather. He said he was not able to make contact with his acquaintances in Bangladesh. I asked the Applicant what proof he had wanted to get. He replied “How could I say what I would get?”
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’.[11] 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.” [12].
33. The Applicant mentioned he was not legally represented. He had been represented by the Duty Lawyer Service (“DLS”) up to 13 January 2015, when the DLS informed the Director that they had no further instruction to act for the Applicant. On 27 January 2015, the Director advised the Applicant to approach DLS if he still would like to have legal assistance. The Applicant visited the DLS office. DLS did not resume acting for him. [13] There was no evidence to show anyone else other than the Applicant had to be responsible for his lack of legal representation after 13 January 2015.
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.[14] The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation in the screening process after 13 January 2015.
35. 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 qualified interpreters when he was still represented by DLS up to 13 January 2015 and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
36. The Applicant complained he received the appeal bundle only on 1 December 2017 before the Board hearing scheduled for 7 December 2017.
37. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[15] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[16], 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.
38. The Applicant received the appeal bundle 6 calendar days (or 5 working days) prior to the Board hearing. The bundle was served on the Applicant in time.
39. 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.
40. 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.
41. The Applicant said he answered all the questions honestly in the Board hearing.[17] That would mean he knew well what was asked and how to answer. He was not confused.
42. There was no evidence the Adjudicator took into account outdated cases or information not officially recognised or simply hearsay.
43. 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 of the case. 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. None of the Applicant’s complaints is substantiated.
Conclusion
44. 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 the review.
Dated 11th day of December 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
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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 11/12/2018
Hashem Ali
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 11/12/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 1588/15/5/120/B217
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 676/08 Pt.2 & RBCZ 9001835/17 (formerly RBCZ 348/08)
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] The Board's decision, paras 29-33.
[7] Ibid., para 20.
[8] Ibid., para 21.
[9] Ibid., paras 26-27.
[10] Ibid., paras 23-25.
[11] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[12] CACV 219/2018 [2018] HKCA 570, para 14(1).
[13] The Director's decision dated 14 May 2015, paras 7-10.
[14] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[15] 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.
[16] 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 personal 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.
[17] The Applicant's affirmation, Point 8 on page 4.
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