Islam Md Nazrul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 212/2018 on BabelCite. This High Court CFI judgment.
1. The Applicant is a national of Bangladesh. He is now aged 33 (DOB: 10 April 1985).
Cited by 2 cases · Cites 5 cases
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HCAL212/2018 [2018] HKCFI 2136 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 212 of 2018 BETWEEN
Application for Leave to Apply for Judicial Review 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 33 (DOB: 10 April 1985). 2.The Applicant claimed he would be harmed or killed by people of the Awami League (“AL”). He and his family supported the Bangladesh Nationalist Party (“BNP”). 3.Elections were coming up in 2014 in Bangladesh. BNP held a campaign in late 2012. The Applicant became a registered member of BNP. He soon attracted the attention of the party leaders and was appointed the General Secretary and Treasurer of BNP in his area. 4.AL won the election in 2014. BNP remained as a main opposition party. 5.The Applicant had a cousin called Shohag. He was a member of the Bangladesh Islami Chhatrashibir (“Shibir”). Shibir was an ally of BNP. In March 2015, Shohag gave the Applicant two documents for safe custody. The documents contained confidential details of the Shibir members. 6.On 28 March 2015, two AL members Rahman and Bali asked the Applicant to give them the two documents. The Applicant refused. He informed Shohag. Shohag told the Applicant not to give the documents to Rahman and Bali. 7.That night, a group of men including Bali broke into the Applicant's shop. Someone slashed the Applicant's neck with a sharp object. The Applicant was also assaulted, stabbed on the head and electric-shocked. His neighbour came to intervene and was also stabbed. The men broke open the Applicant's cash box. They took away all the money and the documents inside, including the two documents which Shaohag had asked the Applicant to keep. The men then left. 8.The Applicant was hospitalised. His brother complained to the police. The police just registered a report but took no action. The Applicant believed the police dared not act against the AL people. 9.A few days later, the Applicant’s shop was burnt down. The Applicant believed the AL people were behind the arson. 10.The Applicant's family members again made a report to the police but the police said they could not locate Rahman and Bali. The Applicant lost faith in the Bangladesh police. He decided to leave the country. 11.The Applicant was discharged from the hospital in late April 2015. He went to live in his sister’s house. 12.In May 2015, the Applicant went to India and Nepal to see if he could get protection there. He failed and finally decided to come to Hong Kong. His wife was a domestic helper here. 13.On 19 July 2015, the Applicant left Bangladesh for China. On 23 July 2015, he sneaked into Hong Kong. He was arrested that day. The Applicant then raised a non-refoulement claim. 14.The Applicant said he could not get state protection in Bangladesh because AL was the ruling party. He claimed the police were corrupt and would persecute BNP supporters. 15.The Applicant did not think internal relocation was viable because his AL enemies could find him anywhere in Bangladesh. He also lacked the means for living in other parts of the country. 16.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]. 17.On 12 February 2018, the Applicant applied for leave for judicial review. Timeline 18.Things happened in this order: –
Respondent/Interested party 19.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. 20.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] 21.In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Adjudicator as respondent and the Director as interested party. 22.The Adjudicator was not acting in his personal capacity. He 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. The Director's decision 23.The Director did not accept the Applicant faced any real torture risk, persecution risk, CIDTP risk (BOR3 risk) or life risk (BOR2 risk). He also found reasonable state protection and internal relocation were available to the Applicant in any event. On 6 September 2017, the Director refused the Applicant’s claim with respect to all the four applicable grounds. The Board's decision 24.The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 21 December 2017. 25.The Adjudicator found significant inconsistencies between what the Applicant told the Director and what he said in the Board hearing. The Applicant told the Director that on that night in 2015 (see paragraph 7 above), the attackers banged on the shutter and then forced into his shop; a few days later his shop was burnt down; nothing happened during his stay in his sister’s place. However, the Applicant told the Adjudicator that the attackers on that night lured him into opening the door before forcing into the shop; he sold off the stocks of his shop before leaving the place; he still got death threats from his enemies while staying in his sister’s place. The Adjudicator found the Applicant was unable to give coherent reasons for the inconsistencies. He did not accept the Applicant’s claim as credible. [6] 26.The Adjudicator found the Applicant failed to prove any risk that warranted non-refoulement protection. On 5 February 2018, he 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 27.In 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. 28.The Applicant accused the Adjudicator failed to make sufficient inquiry; failed to consider updated or relevant COI; took into account outdated cases/irrelevant information; relied on 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 issues of state protection and state acquiescence; misdirected in law; applied the wrong standard of proof; rendered unreasonable decisions. 29.The Applicant mentioned he was not given sufficient legal representation. He also 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 then. He complained the Adjudicator failed to make appropriate arrangement. 30.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 31.In Form 86, the Applicant requested a hearing. The first hearing took place on 29 June 2018. The Applicant was in person. A Bengali interpreter provided interpretation service in court. 32.The Applicant sent in a letter dated 28 June 2018 to ask for adjournment. He said his legal aid appeal was to be heard on 10 August 2018. He hoped he could get legal representation. 33.In court, the Applicant said he went to the Legal Aid Department in February 2018 after he had got the Board's decision. However, somebody in the Legal Aid Department told him there was no rush. The Applicant said he then applied for legal aid only on 30 April 2018. The Director of Legal Aid refused his application on 15 June 2018. He appealed and the appeal hearing was scheduled for 10 August 2018. 34.The Applicant could provide no proof that he was really misled by someone in the Legal Aid Department so he delayed in applying for legal aid. I found the Applicant had caused his own delay in his legal aid application. There was no guarantee that he would win the legal aid appeal and get legal representation eventually. There was no reason for me to adjourn the matter. I therefore proceeded with the current application for leave for judicial review. 35.The Applicant said he knew only a little English. A friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. He could not elaborate on any of those grounds or give specifics. He asked the court to allow him to stay in Hong Kong with his wife, who would be here for some more months (as domestic helper). 36.The Applicant confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim. Discussion 37.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 38.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’.[7] 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.” [8]. 39.It is wrong for the Applicant to say the Director had not screened his application with respect to BOR2 risk. The Director had considered the Applicant's claim without respect to all the four applicable grounds in his single decision dated 6 September 2017. 40.The Applicant complained that he received the appeal bundle only a few days before the Board hearing scheduled for 21 December 2017. 41.According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[9] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[10], 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 29 June 2018 confirmed that the Applicant received the appeal bundle on 14 December 2017. That was 7 calendar days (or 6 working days) prior to the hearing. Thus, the bundle was served on the Applicant in time. 43.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 and there was no evidence to suggest the bundle was voluminous or difficult. 44.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 was no evidence that he had so complained to the Adjudicator or asked for adjournment during the appeal hearing. 45.The Applicant said in his affirmation that he answered all the questions honestly.[11] That would mean he knew well what was being asked and answered at will. He was not confused. 46.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. 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. 47.The Applicant mentioned he was not legally represented for appeal to the Board. He had been represented by the Duty Lawyer Service up to the Director’s decision dated 6 September 2017. There was no evidence to show he had re-applied for legal assistance from the Duty Lawyer Service afterwards. The Applicant also failed to show this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process. 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.[12] 48.The Applicant accused the Adjudicator of failing to evaluate and make a finding as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights. The Adjudicator found the Applicant's claim incredible. In light of such finding, it was not necessary for the Adjudicator to go on to discuss issues such as human rights violation, state acquiescence, state protection, internal relocation and so on. 49.The Applicant complained the Adjudicator had relied on outdated cases or information not officially recognised or simply hearsay. There was no evidence of that and the Applicant also failed to point out the specifics. 50.There are other vague complaints raised by the Applicant. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. In my judgement, 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 and applied the law correctly. He considered the Applicant's case carefully. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant's complaints is substantiated. Conclusion 51.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 5th day of October 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] CACV 54/2018, para 45. [6] The Board's decision, paras 41-51. [7] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45. [8] CACV 219/2018 [2018] HKCA 570, para 14(1). [9] 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. [10] 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. [11] The Applicant's affirmation, Point 5 on page 20. [12] CACV 284/2017 Re Paswan Shibu Lal, para 21. |
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