Jahurul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 160/2018 on BabelCite. This High Court CFI judgment.
1. The Applicant is a Bangladesh national. He is now aged 27 (DOB: 12 January 1991).
Cited by 1 case · Cites 2 cases
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HCAL160/2018 [2018] HKCFI 1469 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 160 of 2018 BETWEEN
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:
Observations for the Applicant Background 1.The Applicant is a Bangladesh national. He is now aged 27 (DOB: 12 January 1991). 2.The Applicant claimed he would be harmed or killed by some people of the Awami League (“AL”) including Iqbal Hossain (“Iqbal”). The Applicant was an office bearer of an opposition party Jamaat-e-Islami (“JIL”) in the Chikondi Union. He had dispute with his AL enemies before and during the parliamentary election in 2014. 3.The Applicant also claimed he would be harmed or killed by Ismail Hossain (“Ismail”) because he witnessed Ismail murder a businessman called Manik. Ismail was an AL office bearer in the area and an influential man. 4.The Applicant further claimed that he was falsely accused of some very serious offences by his enemies. He feared he would be arrested by the Bangladesh police. 5.The Applicant said he joined the student wing of JIL in 2009. In January 2013, he was appointed the Publicity Secretary of JIL in the Chikondi Union. 6.In November 2013, there were protests against the ruling party AL. In one protest staged by JIL and the Bangladesh Nationalist Party (“BNP”), some AL people attacked the protesters. The AL people were backed by the police. The Applicant was assaulted by Iqbal, who was a district-level president of Chatra League (the student wing of AL). The Applicant was injured but he managed to escape. He did not report the matter to the police because the police were in collaboration with the AL people. 7.During the election in January 2014, the Applicant assisted an independent candidate Helal. The Applicant learnt there was false voting caused by AL members, so he gathered some JIL members to see to the matter. He saw AL members making false votes. An altercation arose. Some JIL members were injured by the AL people. Police came and arrested the JIL members. The Applicant managed to escape unhurt. 8.Fearing the AL people would harm him, the Applicant hid himself in a friend’s home. He learnt from his parents that he was the main target of a false accusation raised by the AL people. The police were looking for him. The Applicant thus went into hiding further. 9.On 13 January 2014, the Applicant accidentally saw Ismail and his men arguing with a businessman called Manik. Ismail was an AL office bearer in the area. His brother was also an influential man. 10.The Applicant saw Ismail kill Manik with a knife. He later learnt that Ismail had been extorting 8 million Bangladesh Takas from Manik. Manik was unable to pay. 11.Manik’s wife reported the killing to the police. The Applicant was summoned to be a witness. However, he dared not go to the police station to give a witness statement. He moved to live in another friend’s home. He heard from others that Ismail and the AL people were looking for him. 12.In January 2014, the Applicant went to Dhaka. He had been planning to leave Bangladesh. 13.On 23 February 2014, some armed men sent by Ismail found the Applicant. They attacked the Applicant and threatened to kill him. They only left when some people came to the Applicant’s rescue. The Applicant was severely injured. He was sent to hospital and discharged after 15 days. After leaving the hospital, he moved to live with his relatives. 14.In late 2014, the Applicant heard that some JIL members had been framed up and imprisoned by AL. He later learned he had already been convicted of false accusations of attempted murder, possessing firearm, snatching ballot boxes and injuring 5 policemen. The police had been looking for him. The Applicant also learnt some of his comrades had been imprisoned or killed. He believed the enemies had influenced the police and the court. 15.In early 2015, the Applicant was attacked by some armed men, who claimed to have been sent by the Ward Commissioner. The Applicant resisted and ran away. He stayed with his relatives. He learnt from his parents that the AL people had been looking for him and threatened to kill him. 16.The Applicant did not report his fear to the Bangladesh authorities. He said those authorities were under the control of AL. He also thought internal relocation was not viable. 17.The Applicant finally left Bangladesh for China on 10 January 2016. A month later, he entered Hong Kong from China illegally. He surrendered to the Immigration Department and sought non-refoulement protection. 18.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 (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4]. 19.On 5 February 2018, the Applicant applied for leave for judicial review. Chronology of events 20.Things happened in this order: –
Respondent/Interested party 21.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. Director of Immigration (the Director) 22.In the Director's decision dated 11 July 2017, the immigration officer found there were inconsistent and incredible features in the Applicant’s claim. 23.However, even on the strength of the Applicant's allegations, the officer considered the Applicant’s perceived risk of harm by his enemies to be low. He did not accept the Applicant had been inflicted with ill-treatment to a minimum level of severity or he was not a target of the Bangladesh state or authorities. 24.The officer was aware there were reports of police corruption and human rights abuse. However, there was objective country-of-origin information (“COI”) to show the Bangladesh government had taken measures to improve the effectiveness of the police force. There were also other channels for complaints. The Applicant would not be denied of justice in Bangladesh. The officer was satisfied that reasonable state protection was available to the Applicant. Reasonable internal relocation was also viable. 25.The officer did not accept the Applicant faced any real risk that warranted non-refoulement protection. He refused the Applicant's claim respect to all the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk). TCAB/NCPO (the Board) 26.The Adjudicator found a number of inconsistent, implausible and incredible features in the Applicant’s claim. She did not accept the Applicant was a truthful witness. She did not accept his claim was credible. 27.The Adjudicator found the Applicant faced no real risk that warranted non-refoulement protection. She refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk). Grounds of judicial review 28.In Form 86, the Applicant complained the Adjudicator 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; relied on outdated cases and information not officially recognised or simply hearsay. 29.Although the Applicant did not name the Director as respondent but only as interested party, he complained the Director served the appeal bundle on him only seven days before the appeal hearing. He could not prepare the appeal in time as he was unrepresented and had difficulty to find someone to translate the English documents for his understanding. He was thus confused of what happened during the appeal. Court hearing 30.In Form 86, the Applicant requested a hearing. The hearing took place on 6 June 2018. The Applicant was in person. A Bengali interpreter provided 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 in the affirmation. He had nothing to add. 32.The Applicant said he had submitted all the information and materials he had to the Director and the Adjudicator for their consideration of his non-refoulement claim. However, he said it was difficult for him to obtain documents from the Bangladesh government. The Applicant did not specify what documents he wanted to obtain, how relevant they were and what efforts he had made to try to get them. 33.The Applicant complained the Director and the Adjudicator had not researched enough in his case. He accused they had not considered his claim comprehensively. Discussion 34.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 35.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’.[5] 36.The Applicant complained that he received the appeal bundle only 7 days before the appeal hearing. 37.According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[6] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[7], 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 said he received the appeal bundle 7 days prior to the appeal hearing scheduled for 24 October 2017. In that 7-day period, the were 6 working days (excepting a Sunday) prior to the appeal hearing. Thus, 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 by the immigration officer. The Applicant's case was not difficult. There was no evidence to show the appeal bundle was difficult or voluminous. 40.In court, the Applicant admitted he had a friend to help 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. 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. 41.A few days were certainly 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 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. The Applicant gave detailed evidence before the Adjudicator.[8] The Applicant also said in his affirmation that he answered all the Adjudicator’s questions honestly. That means the Applicant knew well what was happening in the appeal hearing. 42.The Applicant mentioned he was not legally represented then. He had been represented by the Duty Lawyer Service up to the Director rendered his decision on 11 July 2017. 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.[9] 43.The Applicant said he had submitted all the information and materials he had to the Director and the Adjudicator for their consideration of his non-refoulement claim. However, he said it was difficult for him to obtain documents from the Bangladesh government. The Applicant did not specify what documents he wanted to obtain; how relevant they were and what efforts he had made to try to get them. There is no substance in such complaint. 44.The Applicant had other complaints which were merely categorical accusations. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find the Adjudicator had proper basis for her findings, conclusions and decisions which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. She 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 she was acquainted with the facts of the Applicant's case. She considered the Applicant’s claim carefully and applied the law correctly. She 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. None of the Applicant’s complaints was substantiated. 45.The Director is an interested party. I have also reviewed the Director's decision under ‘rigorous examination and anxious scrutiny’. I am satisfied his findings, conclusions and decisions were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. What has been said of the Adjudicator in para. 44 above is also true of the Director. The Director too had achieved 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 the review. Dated 9th day of July 2018
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 [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] 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. [7] 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. [8] The Adjudicator’s Report, paras 49-59. [9] CACV 284/2017 Re Paswan Shibu Lal, para 21. |
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