Miah Abdur Rob v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 399/2018 on BabelCite. This High Court CFI judgment.
1. The Applicant is a national of Bangladesh. He is now aged 40 (DOB: 25 February 1978).
Cites 5 cases
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HCAL399/2018 [2018] HKCFI 2572 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 399 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 national of Bangladesh. He is now aged 40 (DOB: 25 February 1978). 2.The Applicant claimed he would be harmed or killed by some people of the Awami League (“AL”) because he had financial dispute with those people. The Applicant said his enemies made false accusation against him. He feared the Bangladesh police would arrest him. 3.The Applicant said he became a member of Chhatra Shibir (“CS”) the 1999. CS was the student wing of the Bangladesh Jamaat-e-Islami (“JEI”). In 2001, he was selected as the General Secretary of CS in his college. 4.The Applicant set up his own business after graduating from the college. In 2009, he partnered with six people to run a business. Those people were Nuruzzaman, Atikur, Robel, Shahin, Anowar and Hazi. 5.In 2010, the Applicant and his partners borrowed money from some creditors. 6.In mid-2011, Nuruzzaman, Robel, Shahin and Hazi wanted to borrow more money to expand the business but the other partners including the Applicant disagreed. 7.Meanwhile, the Applicant discovered some money had gone missing from the company’s account. He asked Nuruzzaman where the money was. Nuruzzaman then attacked him with a knife. The Applicant was injured. Nuruzzaman threatened to kill the Applicant. He claimed his uncle was Shamin Osman. [The Applicant said Shamin Osman belonged to AL. He was a powerful AL leader and a former member of parliament.] 8.The Applicant did not report the matter to the police. He succumbed to his partners and agreed to borrow more money from the creditors. 9.In late 2012, the Applicant found out Nuruzzaman, Robel, Shahin and Hazi had appropriated some goods from the company. 10.In January 2013, all the partners held a meeting. Nuruzzaman, Robel, Shahin and Hazi blamed the Applicant and the other two partners (Atikur and Anowar) for messing with BNP and JEI. They also accused the three of stealing money from the business. A fight broke out between the two sides. The Applicant managed to escape. He fled to live with a friend and then stayed with his relative. He learnt his enemies were looking for him. 11.The Applicant’s brother made a complaint to the police on behalf of the Applicant. However, the Applicant's brother was told that the police had been ordered by Shamin Osman (Nuruzzaman’s uncle) not to accept his complaint. 12.The Applicant learnt his enemies continued to look for him. In March 2013, he moved further to another place. His brother told him Nuruzzaman had brought some creditors to their home to ask the Applicant to pay back the loans. Those men threatened to burn down the Applicant’s house if they were not paid. They also said they would find the Applicant to kill him. 13.Later, while the Applicant was staying at a relative’s place he learnt Nuruzzaman had sent 20 men to vandalise his home. The men threatened they would not let the Applicant live in peace. 14.The Applicant heard from his brother that the local police had issued one warrant of arrest against him for cheating and another warrant in relation to terrorism accusation. 15.The Applicant thought it was not safe for him to stay in Bangladesh. He left the country for China on 17 May 2013. However, he was caught by the Chinese police and repatriated to Bangladesh. 16.Later, the Applicant obtained a visa to enter China. He left Bangladesh for China again on 4 July 2013 and subsequently sneaked into Hong Kong. He was arrested by the police on 17 August 2013. The Applicant raised a non-refoulement claim on 23 August 2013. 17.While in Hong Kong, the Applicant was told by his brother that one of his business partners Atikur had gone missing. The Applicant also learnt Nuruzzaman and his men had beaten up his family members and vandalized his home. 18.The Applicant claimed the Bangladesh police were also after him. He said internal relocation was not viable because AL would locate him wherever he hid himself in Bangladesh. 19.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 (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4]. 20.On 12 March 2018, the Applicant applied for leave for judicial review. Timeline 21.Things happened in this order: –
Respondent/Interested party 22.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. 23.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] 24.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. 25.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 26.In the Director's decision dated 25 April 2016, the Director did not accept the Applicant faced any torture risk, persecution 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 claim with respect to those three applicable grounds. 27.On 5 July 2017, the Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. The Board's decision 28.The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 14 November 2017. 29.On the Applicant's account of events, the Adjudicator found the complained situation was only a private dispute. There was no evidence to show the Applicant was discriminated due to his JEI membership or by the Bangladesh government. There was no evidence of state involvement or that AL was after the Applicant to cause him harm. The Applicant had not been inflicted with ill-treatment to a minimum level of severity. 30.The Adjudicator studied relevant country-of-origin information ("COI"). He was satisfied reasonable state protection and justice were available to the Applicant in Bangladesh. 31.The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 9 March 2018, he refused the Applicant's appeal with respect to all the four applicable grounds. Grounds of judicial review 32.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. 33.The Applicant accused the Adjudicator misdirected in law; failed to make sufficient inquiry; failed to consider updated or relevant country-of-origin information ("COI"); took into account outdated cases and irrelevant information; considered 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; applied the wrong standard of proof. 34.The Applicant complained there were failures at first instance by the assigned duty lawyer resulting in a lack of and/or insufficient legal representation. 35.The Applicant 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 of what happened. He complained the Adjudicator failed to make appropriate arrangement. 36.Although the Applicant did not name the Director as respondent but only as interested party, he accused the Director decided on BOR2 risk without screening. Court hearing 37.The hearing took place on 6 July 2018. The Applicant was in person. A Bengali interpreter provided service in court. 38.The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. The Applicant had nothing to add. 39.The Applicant also confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim. Discussion 40.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 41.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’.[6] Nevertheless, it is said in Re Islam Rafiqul: –
42.It was wrong for the Applicant to say the Director had not screened his non-refoulement claim with respect to BOR2 risk. The Director’s further decision dated 5 July 2017 was on BOR2 risk. The Applicant failed to submit additional facts for the Director’s consideration. The Director was entitled to consider the Applicant’s claim with respect to BOR2 risk without holding further interview. The Director’s further decision must be read in conjunction with his earlier decision dated 25 April 2016, where there was a detailed analysis of the Applicant’s case. 43.The Applicant complained there were failures by the assigned duty lawyer at first instance. The Applicant failed to provide particulars. 44.The Applicant complained there was a lack of and/or insufficient legal representation. He had been represented by the Duty Lawyer Service up to the Director's decision dated 25 April 2016. 45.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.[8] The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process. 46.The Applicant raised his language problem. In the current application, a friend helped 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 at all material times. Furthermore, he was assisted by qualified interpreters when he was still represented by the Duty Lawyer Service and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem. 47.The Applicant complained he received the appeal bundle only on 7 November 2017 before the Board hearing scheduled for 14 November 2017. 48.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. 49.The appeal bundle was served on the Applicant 7 calendar days (or 6 working days) prior to the Board hearing. It was served on the Applicant in time. 50.The 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. 51.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 his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing. 52.The Applicant said he answered all the questions honestly in the Board hearing.[11] That would mean he knew well what was asked and how to answer. He was not confused. 53.The Adjudicator studied relevant COI and considered the human rights situation in Bangladesh. He concluded reasonable state protection was available to the Applicant. The Adjudicator found there was no evidence of any state acquiescence. He did not accept Shamin Osman (Nuruzzaman’s uncle) had influenced the police. The Adjudicator’s findings were not Wednesbury unreasonable. 54.The Applicant failed to show there was a necessity to call for psychological or psychiatric reports. 55.There was no evidence the Adjudicator cherry-picked information or took into account outdated cases/irrelevant information/information not officially recognised or simply hearsay. There was also no evidence the Adjudicator misdirected himself in law or applied the wrong standard of proof. 56.I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. 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 of the case. He 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 57.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 11th day of December 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] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45. [7] CACV 219/2018 [2018] HKCA 570, para 14(1). [8] CACV 284/2017 Re Paswan Shibu Lal, para 21. [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 13 on page 4. |
Cases cited in this judgment