Tofajjal Hossain v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1163/2017 on BabelCite. This High Court CFI judgment.
1. The Applicant is a national of Bangladesh. He is now aged 36 (DOB: 19 October 1982).
Cites 4 cases
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HCAL1163/2017 [2018] HKCFI 2410 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1163 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 national of Bangladesh. He is now aged 36 (DOB: 19 October 1982). 2.The Applicant had come to Hong Kong twice. He first came in 2006 saying he and his father Miah would be harmed or killed by the Bangladesh Nationalist Party (“BNP”) because Miah defected BNP. The Applicant then raised a torture claim, which was rejected by the Director of Immigration (“the Director”) in October 2012. The Applicant was sent back to Bangladesh in January 2014. However, he came again in August 2015. This time, he claimed he would be harmed or killed by a person called Rabbi and his underlings. Those people belonged to the Awami League ("AL"). 2006 claim 3.The Applicant said his father Miah was an ardent supporter of BNP. In 2005, someone told the Applicant that he and Miah would be killed by BNP if Miah defected BNP. 4.Miah later really left BNP. Some BNP members threatened to kill him and the Applicant. In December 2005, Miah sent the Applicant to live elsewhere and arranged for the Applicant to leave the country later. 5.On 6 February 2006, the Applicant left Bangladesh. He arrived in Hong Kong as visitor the next day. The Applicant was allowed to stay for 14 days. However, he overstayed. He was arrested seven months later in September 2006. The Applicant subsequently lodged a torture claim[1]. 6.On 31 October 2012, the Director refused the Applicant’s torture claim. There was no appeal. 7.On 6 January 2014, the Applicant was repatriated to Bangladesh. 2016 claim 8.The Applicant said that in July 2015, he saw three men attacking a person. One of the assailants was called Rabbi. The Applicant intervened and was injured. His friends came to assist him. The three assailants were overpowered and beaten up but they were let go finally. The Applicant surmised the three assailants intended to rob the victim. 9.The Applicant's mother knew of the incident. She was worried and asked the Applicant to live in his sister’s home. Rabbi was paid 20,000 Bangladesh takas as settlement money but he and his men still looked for the Applicant for revenge. They threatened the Applicant’s mother that they would kill her son. 10.The Applicant returned home later. Some people came to look for him and wanted to make troubles. 11.Rabbi was a BNP supporter. The Applicant thus went to speak to a BNP leader called Rabbu. He told Rabbu that Rabbi had threatened to kill him. Rabbu was a righteous man. He promised to expel Rabbi from BNP if the latter had really done what the Applicant complained. 12.The Applicant stayed away from home again. Later, he learnt Rabbi and his associates had been expelled from BNP. They changed to support AL (the ruling party in Bangladesh) and got the backing of some powerful political figures. 13.The Applicant came across people associated with Rabbi. He felt threatened and decided to leave the country. In August 2015, the Applicant left Bangladesh. He came to Hong Kong illegally later. He surrendered to the Immigration Department on 28 August 2015. The Applicant raised a non-refoulement claim in February 2016. 14.The Applicant did not seek assistance from the Bangladesh police. He thought the police were corrupt and only favoured AL. He had no confidence in the Bangladesh government at all. 15.The Applicant thought internal relocation was not viable. He said he had many enemies, who could find him anywhere in Bangladesh. He did not know where he could stay in the country. 16.The Applicant kept contact with his family and friends in Bangladesh. He was told the situation had not changed for the better and his father had disappeared. 17.In the ensuing two-tier screening process here, the Director considered there was no need to consider torture risk again in the Applicant's case. He refused the Applicant’s 2016 claim with respect to these three applicable grounds: risk of persecution[2], risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and risk of violation of the right to life (BOR2 risk)[4]. 18.This time, the Applicant appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”). The Board refused the Applicant’s appeal with respect to these three applicable grounds: persecution risk, BOR3 risk and BOR2 risk. 19.On 29 December 2017, the Applicant applied for leave for judicial review. Timeline 20.Things happened in this order: –
Respondent/Interested party 21.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. 22.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] 23.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 24.On 31 October 2012, the Director refused the Applicant's torture claim. There was no appeal. The Applicant was sent back to Bangladesh on 6 January 2014. In August 2015, he came to Hong Kong again and raised a non-refoulement claim in February 2016. 25.In his decision dated 1 March 2017, the Director did not accept the Applicant faced any persecution risk, BOR2 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 non-refoulement claim with respect to those three applicable grounds. The Board's decision 26.There was no appeal against the Director’s 2012 decision on torture risk. 27.In relation to the Director’s 2017 decision on persecution risk, BOR2 risk and BOR3 risk, the Applicant appealed to the Board. 28.The Adjudicator interviewed the Applicant on 27 October 2017. She did not make specific findings on the Applicant's credibility. She assessed the Applicant's claim on his own account of allegations. 29.The Adjudicator considered the Applicant had not been subjected to ill-treatment to a minimum level of severity. He failed to prove there was genuine and substantial BOR3 risk.[6] His complained situation involved no BOR2 risk.[7] It was also not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). There was no persecution risk.[8] 30.The Adjudicator considered relevant country-of-origin information ("COI"). She concluded reasonable state protection was available to the Applicant if he would seek help from the Bangladesh authorities.[9] Internal relocation was also viable.[10] 31.On 29 November 2017, the Adjudicator refused the Applicant's appeal with respect to these three applicable grounds: persecution risk, BOR2 risk and BOR3 risk. Grounds of judicial review 32.In Form 86 and his affirmation, the Applicant complained the Adjudicator unlawfully fettered her 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. 33.The Applicant said he was not represented for appeal to the Board. He 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. 34.The Applicant also complained the Adjudicator relied on outdated cases and information not officially recognised or simply hearsay. Court hearing 35.The Applicant requested a hearing. It was scheduled for 6 June 2018. The Applicant was absent. He had left a mobile number on record. The Bengali interpreter called that number and found the phone had been turned off. 36.To date, the Applicant has not contacted the court or written in to explain for his absence on 6 June 2018. 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’.[11] Nevertheless, it is said in Re Islam Rafiqul: –
39.The Applicant’s torture claim in 2006 was on a different basis from the non-refoulement claim he made in 2016. In the 2006 claim, the Applicant said he would be harmed or killed by BNP due to his father’s defection. In 2016, the Applicant claimed he would be harmed or killed by Rabbi and his underlings because he had stopped Rabbi from robbing a man. 40.As the 2016 claim was on a different basis, torture risk should also be an applicable ground for consideration. The Director, however, did not consider torture risk with respect to the Applicant's new claim. Nor did the Adjudicator, who was supposed to deal with the Applicant's 2016 claim on a re-hearing basis even though the Director had not considered torture risk this time. 41.According to s.37U of the Immigration Ordinance, Cap. 115 which adopts the definition of torture in Article 1 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ‘torture’ means an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person –
42.It is clear that even on the Applicant's own account of description, his complained situation did not fit the definition of ‘torture’ to any extent. The Applicant's 2016 claim was only related to his personal conflict with Rabbi. Rabbi was not an official or acting in any official capacity though he finally joined AL, which was the ruling party in the country. There was no evidence Rabbi was acting in any capacity for or with the consent or acquiescence of the Bangladesh state. Therefore, the failure of the Director and the Adjudicator to consider the Applicant's 2016 claim with respect to torture risk did not prejudice the Applicant at all because his 2016 claim was not on that basis. It was neither part of the Applicant's grounds for judicial review. His judicial review complaints were on other matters (see paragraphs 32-34 above). 43.The Applicant complained he received the appeal bundle only on or about 20 October 2017 before the Board hearing scheduled for 27 October 2017. 44.According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[13] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[14], 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. 45.The Applicant received the appeal bundle 7 calendar days (or 6 working days) prior to the Board hearing. Thus, the bundle was served on the Applicant in time. 46.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. 47.In the current application, Form 86 and the Applicant's affirmation were prepared in English. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling English documents. 48.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 the appeal. There was no evidence he had complained to the Adjudicator or asked for adjournment during the appeal hearing. 49.There was no evidence to show the Applicant was confused as to what happened in the appeal before the Adjudicator. In fact, the Applicant said he answered all the questions asked by the Adjudicator honestly.[15] That would mean he knew well what was happening in the Board hearing. 50.The Applicant mentioned he was not legally represented. He was represented by the Duty Lawyer Service (“DLS”) initially but he gave no further instruction to DLS later, leading to the scheme ceased acting for him.[16] He could not complain for having no further legal representation in the circumstance. 51.The other complaints by the Applicant are vague. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find the Adjudicator had proper basis for her finding, conclusion and decision 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 was acquainted with the facts of the Applicant's case. She 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 52.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 20th day of November 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 122-125. [7] Ibid., paras 116-121. [8] Ibid., paras 126-130. [9] Ibid., paras 70-103. [10] Ibid., paras 104-115. [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 ‘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. [14] 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. [15] The Applicant's affirmation, Point 8 on page 3. [16] The Board's decision, para.12. |
Cases cited in this judgment