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HCAL1092/2017
[2018] HKCFI 1254
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1092 of 2017
BETWEEN
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Md Shohel Sheak |
Applicant |
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and |
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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 Bangladesh national. He is now aged 40 (DOB: 2 June 1978).
2. The Applicant claimed he would be harmed by members of the Awami League (“AL”) in Bangladesh.
3. The Applicant said he was an enthusiastic supporter of the Bangladesh Nationalist party (“BNP”). He attended party meetings and asked people to support BNP. His brother Nasir was also a supporter of BNP.
4. AL people would threaten BNP supporters not to participate in BNP activities and meetings.
5. There was an election in December 2008. AL members repeatedly threatened others including the Applicant and Nasir not to participate in the election campaign. The Applicant and Nasir ignored the threats.
6. In January 2009, shortly after the election, some AL members abducted the Applicant and took him to a jungle. They blamed the Applicant for taking part in the election. They attacked the Applicant. Someone used a chopper to wound the Applicant’s leg. The assailants then left.
7. Nasir also received threats. Someone told him that he could not stay in his village. Later, he was told that he could not stay in Bangladesh as long as AL was in power.
8. In fear, the Applicant and Nasir went into hiding separately. The Applicant later left Bangladesh for China on 5 July 2009. In late July 2009, he sneaked to Hong Kong from China by boat. He subsequently lodged a non-refoulement claim.
9. In 2011, the Applicant heard that Nasir had died probably due to tension. The Applicant feared he might die like Nasir.
10. The Applicant thought the Bangladesh police would not help him because they would only serve the ruling party. He also thought internal relocation was of no use.
11. In the ensuing two‑tier screening process here (“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 15 December 2017, the Applicant applied for leave for judicial review.
Chronology of events
13. Things happened in this order: –
| 2009-7-5 |
The Applicant left Bangladesh for China. |
| 2009-7-29 |
The Applicant illegally entered Hong Kong from China by boat. He was arrested by the police. |
| 2009-8-1 |
The Applicant raised a torture claim. |
| 2015-1-28 |
The Director held a screening interview with the Applicant. |
| 2015-3-13 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) CIDTP risk (BOR3 risk). [“the Director's decision”] |
| 2017-5-11 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-5-25 |
The Applicant failed to submit additional facts by deadline or thereafter. |
| 2017-7-10 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director's further decision”] |
| 2017-11-23 |
The Applicant appeared before the Board for appeal. |
| 2017-12-8 |
The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board's decision”] |
| 2017-12-15 |
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 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 Adjudicator as respondent and the Director as interested party.
16. The Adjudicator did not act in his personal capacity. He represented the Board. In court, the Applicant agreed to change to sue the Board in lieu of the Adjudicator. Hence, the Board is the putative respondent; the Director is the putative interested party.
Director of Immigration (the Director)
17. In the Director’s decision dated 13 March 2015, the immigration officer did not make any specific findings on the Applicant's credibility. However, even on the strength of the Applicant’s allegations, the officer assessed the level of the Applicant’s perceived risk to be low.
18. Having balanced the country-of-origin information relating to the Bangladesh police, the officer considered reasonable state protection was available to the Applicant. He was also satisfied that internal relocation was viable.
19. The officer did not accept the Applicant faced torture risk, persecution risk and BOR3 risk that warranted non-refoulement protection. He refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk, and (iii) CIDTP risk (BOR3 risk).
20. Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of the fourth applicable ground, i.e. life risk (BOR2 risk). However, the Applicant did not respond by the deadline of 25 May 2017 or thereafter.
21. In the Director’s further decision dated 10 July 2017, the officer considered that the Applicant failed to establish a personal and real risk of his rights under the HKBOR being violated (including right to life under BOR2). He refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground: life risk (BOR2 risk).
TCAB/NCPO (the Board)
22. The Adjudicator found the Applicant’s evidence vague, unreasonable and unreliable. He ruled that the Applicant had failed to prove his claim.
23. Nonetheless, the Adjudicator went on to consider the Applicant's claim on the strength of his allegations. He was not satisfied the Applicant faced any real risk that warranted non-refoulement protection.
24. The Adjudicator accepted reasonable state protection and internal relocation were available to the Applicant.
25. On 8 December 2017, the Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds.
Grounds of judicial review
26. In his affirmation, the Applicant stated eight grounds of complaint under the headings of procedural impropriety/unfairness, irrationality and procedural impropriety. It would be more comprehensible to narrate the Applicant’s complaints as follows rather than to refer to the eight grounds individually.
27. The Applicant complained the Adjudicator failed to carry out sufficient research and enquiry into the conditions of Bangladesh; failed to consider relevant and up-to-date country-of-origin information (“COI”); relied on outdated cases; relied on information not officially recognised or simply hearsay; placed weight on irrelevant information or incorrect/inaccurate facts; cherry-picked information; failed to consider facts and inferences favourable to the Applicant; 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 analyse/assess and misdirected himself on the issue of state protection; failed to call for psychological and psychiatric reports; applied the wrong standard of proof; rendered unreasonable decisions.
28. The Applicant also complained the appeal bundle was only served a short time before the appeal. He did not have sufficient time to get language assistance to prepare for the appeal before the Adjudicator. He said he was confused during the appeal hearing. He also complained there was insufficient legal representation.
29. Although the Applicant did not name the Director as respondent but only as interested party, he complained that the Director failed to screen his claim with respect to BOR2 risk.
Court hearing
30. In Form 86, the Applicant requested a hearing. The hearing took place on 17 May 2018. The Applicant was in person. A Bengali interpreter rendered interpretation service in court.
31. The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were there. He said he could not remember when he received the appeal bundle before the appeal hearing. He could not be sure whether he had sufficient time to prepare for the appeal. He confirmed that he told his case fully and clearly to the Adjudicator.
32. The Applicant also confirmed he had related all to the Adjudicator and the Director for their consideration of his non-refoulement claim.
Discussion
33. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
34. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on the claimant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[5]
35. The Applicant has filed a barrage of complaints. Most of them are vague. The Applicant cannot elaborate or specify his complaints in court.
36. It is not true that the Director had not considered the Applicant’s claim with respect to BOR2 risk. The Director in his letter dated 11 May 2017 invited the Applicant to submit additional facts for the consideration of BOR2 risk. However, the Applicant failed to respond. In such circumstance, the Director was entitled to further consider the Applicant’s claim in relation to BOR2 risk without holding further hearing. In court, the Applicant confirmed that he had submitted everything to the Director and the Adjudicator. He thus had presented his case fully to them.
37. The Director by his decision dated 13 March 2015 and further decision dated 10 July 2017 fully and carefully dealt with the Applicant's claim with respect to all the four applicable grounds including BOR2 risk.
38. The Applicant complained there was insufficient legal representation. He had been represented by the Duty Lawyer Service up to the Director’s decision dated 13 March 2015.
39. The Applicant failed to show this court how his case would be undermined or prejudiced by the lack of further legal representation only in the later stages of the screening process. The Court of Appeal had repeatedly stated that an applicant of non-refoulement claim did not have an absolute right to free legal representation at all stages of the proceedings.[6]
40. The Applicant complained that he received the appeal bundle only a short time before the appeal hearing.
41. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[7] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[8], 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.
42. The Director in his letter dated 31 May 2018 confirmed that the Applicant received the appeal bundle on 16 November 2017 (Fri). The hearing before the Adjudicator was scheduled on 23 November 2017 (Fri). The appeal bundle was served 7 calendar days (or 6 working days) prior to the date of the hearing. It was in time.
43. The Director also pointed out in his letter that the appeal bundle consisted mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim by the immigration officer.
44. In court, the Applicant admitted he had a friend to prepare Form 86 and the affirmation for him. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents for him. I am sure that was the case at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling documents.
45. A few days’ time certainly was not a long period. However, the Applicant's case was not difficult and there was no evidence to show the appeal bundle was difficult or voluminous. A few days could 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 the appeal. There is no evidence to show he had so complained to the Adjudicator or asked for adjournment during the appeal hearing. There is also no evidence to show the Applicant was confused as to what happened in the appeal before the Adjudicator.
46. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find none of the Applicant’s complaints can stand.
47. In my judgement, the Adjudicator had proper basis for his findings, conclusions and decisions 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’s report showed he was acquainted with the facts of the Applicant's case. He considered the Applicant’s claim carefully and applied the law correctly. He was entitled to render those findings, conclusions and decisions which were all reasonable. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
48. The Director is an interested party. I have also reviewed the Director’s decision plus further decision under ‘rigorous examination and anxious scrutiny’. I am satisfied his findings, conclusions and decisions were not Wednesbury unreasonable. What has been said of the Adjudicator in para. 47 above is also true of the Director. He too had achieved 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 the review.
Dated 12th 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 12/6/2018
Md Shohel Sheak
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 12/6/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 1253/15/3/173/B186
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1041/14 & RBCZ 9001757/17 (formerly RBCZ-1983-09)
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] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[6] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[7] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Bboard pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.
[8] 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.
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