Shekh Mahammad Iqlaz v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1126/2017 on BabelCite. This High Court CFI judgment.
1. The Applicant is a Bangladesh national. He is now aged 39 (DOB: 25 September 1978).
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HCAL1126/2017 [2018] HKCFI 1466 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1126 of 2017 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 39 (DOB: 25 September 1978). 2.The Applicant claimed he would be harmed or killed by the Awami League (“AL”) because he was an active member of Bangladesh Nationalist Party (“BNP”). He refused to join AL. 3.The Applicant said he joined BNP when he was 20 years old. He was an active member. AL became the ruling party in Bangladesh in 2008 and was powerful. Its members were violent to the BNP people. 4.The Applicant said his problems started in late 2010. He refused to leave BNP to join AL. Some AL members began to hold grudges against him. 5.One day in November 2011, the Applicant was beaten by some AL people. He did not report the matter to the police because he was not injured. However, he felt frightened and moved to live in another village. Later, he further moved to Jessore. He stayed there for 10 months. He was blackmailed by some gangsters in Jessore so he returned to his native village in October 2012. 6.In late 2012, the Applicant came across some AL people. They again forced him to join AL. He refused. Those men attacked him. One even cut him with a chopper. The Applicant did not report the matter to the police because he thought AL was powerful and the police would only safeguard AL’s interest. Some BNP leaders suggested that the Applicant should leave the country. 7.The Applicant stayed at home for safety till March 2013. Then he left to live with his in-laws in another village. In September 2013, he returned home. 8.In January 2014 after the election, the Applicant met some AL people who blamed the Applicant for his affiliation with BNP. They tried to attack him but the Applicant managed to escape. 9.On 6 July 2014, the Applicant left Bangladesh for China. He sneaked into Hong Kong by on boat the next day. He was arrested by the police on 8 July 2014. On 12 July 2014, he raised a non-refoulement claim. 10.The Applicant said the Bangladesh authorities could not protect him. Internal relocation was also not viable as AL had wide networks in the country. They could find him anywhere in Bangladesh. 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 21 December 2017, the Applicant applied for judicial review. Chronology of events 13.Things happened in this order: –
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 Applicant named the Adjudicator as respondent and the Director as interested party. 16.The Adjudicator did not act in her personal capacity. She represented the Board. In court, the Applicant agreed to change to sue the Board in lieu of the Adjudicator. Thus, 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 27 May 2016, the immigration officer doubted the Applicant's claim. 18.However, even on the strength of the Applicant's allegations the officer found the level of risk against the Applicant by the alleged enemies was low. The Applicant was not inflicted with ill-treatment to a minimum level of severity. The officer was not satisfied the alleged enemies had intention to kill the Applicant. The claimed risk was not imminent. The officer also considered the said risk to be a merely localised one. 19.The officer was aware there were reports that the Bangladesh police were inefficient and corrupt. There were abuses of power and human rights. Yet, there was objective country-of-origin information (“COI”) to show there had been ongoing reforms in the country. The officer did not accept reasonable state protection was not available to the Applicant. He found internal relocation was also viable. 20.The officer did not accept the Applicant would face any real torture risk, persecution risk and BOR3 risk. He refused the Applicant’s non-refoulement claim with respect to those three applicable grounds. 21.Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of life risk (BOR2 risk). However, the Applicant did not respond by the deadline or thereafter. 22.In the Director’s further decision dated 18 July 2017, the immigration officer considered that the Applicant was not entitled to life risk protection because he failed to establish there was a personal and real risk of his rights under the Hong Kong Bill of Rights being violated (including the right to life under BOR2). He refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). TCAB/NCPO (the Board) 23.The Adjudicator found the Applicant's evidence vague. There were inconsistent and contradictory features in the Applicant's allegations. The Adjudicator was not satisfied that the Applicant was a credible witness. She did not accept the Applicant's claim. 24.The Adjudicator did not accept the Applicant would face any 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, BOR3 risk and BOR2 risk. Grounds of judicial review 25.In his affirmation, the Applicant listed eight grounds of judicial review under the headings of procedural impropriety, unfairness and irrationality. It would be more comprehensible to narrate the Applicant’s complaints as follows rather than to refer to the individual grounds. 26.The Applicant complained the Adjudicator failed to make sufficient enquiry; failed to consider updated or relevant COI; took into account outdated cases/ irrelevant information/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 issue of state protection; misdirected in law; applied the wrong standard of proof; rendered unreasonable decisions. 27.The Applicant complained he was not given sufficient legal representation. He also complained he was given the appeal bundle only a few days before the appeal 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 during the appeal hearing. He complained the Adjudicator failed to make appropriate arrangement in relation to the service of the hearing bundle. 28.Although the Applicant did not name the Director as respondent but only as interested party, he accused the Director decided on the BOR2 risk issue without screening. Court hearing 29.The Applicant requested a hearing. It took place on 1 June 2010. A Bengali interpreter provided interpretation service in court. 30.In court, the Applicant failed to elaborate his grounds of application or give particulars of his complaints against the Adjudicator or the Director. He confirmed that he had submitted all to Director and the Adjudicator for their consideration of his non-refoulement claim. He said he would like to submit a doctor’s certificate to prove his being attacked by the AL people in 2013. That document was at home in Bangladesh and nobody there was able to send him that document. 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’.[5] 33.The Applicant cannot complain he had no opportunity to submit all documents to the Director or the Adjudicator. He had been in Hong Kong since July 2014. There was more than enough time for him to get hold of any proof for his non-refoulement claim. 34.Regarding the BOR2 risk issue, the Director in his letter dated 7 June 2017 invited the Applicant to submit additional facts for the consideration of BOR2 risk. The Applicant, however, failed to respond. In such circumstance, the Director was entitled to further consider the Applicant’s claim with respect to BOR2 risk without holding further interview. In court, the Applicant confirmed that he had submitted all the proof he had to the Director and the Adjudicator. That is to say he had not been deprived of any chance to present his case fully. The Director by his two decisions dated 27 May 2016 and 18 July 2017 had carefully and fully dealt with the Applicant's claim with respect to all the four applicable grounds. 35.The Applicant complained there was insufficient legal representation. He had been represented by the Duty Lawyer Service up to the Director's decision dated 27 May 2016. 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] 36.The Applicant raised his language problem. In the current application, Form 86 and the Applicant's affirmation were well prepared in English. If that was not the Applicant's own effort, then it shows 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 English documents. 37.The Applicant complained that he received the appeal bundle only a few days before the appeal hearing. 38.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. 39.The Director in his letter dated 12 June 2018 confirmed that the Applicant received the appeal bundle on 21 September 2017 (Thursday). That was 7 calendar days (or 6 working days) prior to the hearing. Thus, the hearing bundle was served on the Applicant in time. 40.The 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 bundle papers were difficult or voluminous. 41.A few days certainly was 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. 42.I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find none of the Applicant’s complaints can stand. 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. 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 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. 43.The Director is an interested party. I have also reviewed the Director’s decision and further 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. 42 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 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 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] 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 Board 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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