Rahman Mohammad Arifur v. Li Kwok-wai, The Adjudicator of the Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1076/2018 on BabelCite. This Court of First Instance judgment was delivered on 13 December 2018 before Deputy High Court Judge K.W. Lung.
Administrative law – judicial review – leave – non-refoulement claim – Torture Claims Appeal Board / Non-refoulement Claims Petition Office – supervisory role of the Board – rehearing – grounds of appeal – whether the Adjudicator erred in disregarding the applicant's grounds of appeal and conducting a wholesale rehearing afresh – Bangladeshi national claiming risk of harm from Awami League and criminal prosecution by Bangladeshi police – Director rejected claim as not substantiated – Board confirmed Director's decision – applicant's appeal hearing held on 20 February 2018 – Adjudicator relied on AM v Director of Immigration HCAL 102/2012 and treated appeal as a rehearing afresh – Adjudicator found inconsistencies between screening interview report and hearing evidence and disbelieved the applicant – Immigration Ordinance Cap 115 Schedule 1A section 18 grants the Board power to consider same evidence as before immigration officer and, in defined circumstances, new evidence – function of the Appeal Board under section 37ZQ(2) is to hear and determine appeals under section 37ZR – Court's role in judicial review is supervisory, not appellate, applying 'rigorous examination and anxious scrutiny' standard from Prabakar – Court of Appeal in TK v Jenkins & Another [2013] 1 HKC 526 confirmed supervisory role – Court of Appeal in Ali Haider CACV8/2018 held that evaluation of evidence is for the Director and Board, not the court – Adjudicator's wholesale rehearing without considering the 13 grounds of appeal submitted by applicant may render the unified screening mechanism otiose and relinquish the Board's supervisory role – Adjudicator failed to give reasons for disregarding screening evidence – leave to apply for judicial review granted.
Legal issues: Whether the Adjudicator/Board erred in disregarding the grounds of appeal and conducting a wholesale rehearing
Outcome: Leave to apply for judicial review granted.
Cited by 21 cases · Cites 4 cases
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HCAL 1076/2018 [2018] HKCFI 2726 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1076 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 K.W. Lung:
Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung): THE APPLICATION 1.This is the applicant’s application for leave for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as interested party. The applicant 2.The applicant is a Bangladeshi national, who came to Hong Kong illegally and was arrested by police on 14 January 2015. He was referred to the Immigration Department for investigation on 15 January 2015. On 17 January 2015, he lodged his non-refoulement claim. He claimed that if he was refouled back to Bangladesh, he would be harmed or even killed by the people of the Awami League and its student wing Chatra League for his dispute with them and also, the Bangladeshi police had a criminal case against him. The Director’s Decision 3.The Director had considered his application by reference to the risks below:
4.By Notice of Decision (“the Director’s Decision”) dated 6 February 2017, the Director rejected the applicant’s claim for the reasons that his claims were not substantiated. The Board 5.The Applicant appealed to the Board and attended a hearing on 20 February 2018. 6.Legal representatives for the applicant and the Director were also present before the Adjudicator. 7.By Decision dated 28 May 2018 (“the Board’s Decision”), the Board refused the applicant’s appeal and confirmed the Director’s Decision. DISCUSSION Hearing afresh 8.The Adjudicator relied upon the authority of AM v The Director of Immigration HCAL 102/2012 and decided that he should ‘consider the Appellant’s non-refoulement claim “afresh”, namely as if it comes to me the first time. It is a rehearing so I have to consider all issues of facts (including issues of credibility) and law, and come to my own conclusion based on the relevant Country of Origin Information (“COI”)’[1] 9.The Adjudicator further said in his Decision that it was unnecessary for him to deal with the 13 grounds of appeal submitted by Mr. Wong of the Duty Lawyer Scheme, who represented the applicant because the appeal was a rehearing.[2] 10.The Adjudicator made the enquiries. However, instead of hearing the evidence the first time, he compared the applicant’s evidence at the hearing with those statements or materials which the applicant gave to the immigration officer in the screening. The Adjudicator found discrepancies in the evidence given by the applicant in the screening process and at the appeal hearing. At paragraph 19 of his Decision, he said:
11.He disbelieved the applicant and on that basis, he rejected the applicant’s claims on the above risks. 12.He is entitled to re-examine the evidence in relation to the facts under Section 18 of Schedule 1A of the Immigration Ordinance, Cap.115 (“the Ordinance”)[3]. In fact, he is under a duty to do so. The role of the Board is supervisory 13.However, I wish to point out that the role of the Board is supervisory as held by the Court of Appeal. 14.In TK v Michael Jenkins Esq (unreported, HCAL 126/2010, Lam J, 21 October 2011), Lam J. (as he then was) stated:
15.The Court of Appeal in TK v Jenkins & Another [2013] 1 HKC 526 held:
16.The role of the Board is therefore supervisory. The distinction between the supervisory role of the Adjudicator and that of the Court of the First Instance in judicial review is that the Adjudicator also has the role of fact finding. Such power is provided under section 18 of Schedule 1A of the Ordinance. The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §13: “Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….” 17.In AM, the court set out the ways re-hearing may be done. At paragraph 30 of his judgment, the learned judge said:
Should the Board re-hear indiscriminately? 18.Given the supervisory role of the Board and the flexible ways of the re-hearing, the Board should not, in my view, simply brush aside the grounds of appeal submitted by the applicant. 19.In my opinion, the Board should discharge its supervisory duty to consider the applicant’s appeal against the Director’s Decision.[4] The Board may consider the same evidence before the immigration officer[5]. The Board may also consider other evidence as provided under Section 18 (2) of Schedule A of the Ordinance. As to what way the Board should adopt, it is entirely the Board’s discretion. That is to say, whether the Board will re-hear the applicant wholesale or any part or parts of the applicant’s evidence before the immigration officer, which he wants to clarify, it is within his power to do so. But he may have to give his reasons if he is to have a wholesale re-hearing of the evidence because his decision to ignore the evidence given by the applicant to the immigration officer, which he is entitled to consider and rely upon for his determination, will incur extra time and cost. Re-hearing without considering the grounds of appeal by the Board 20.Here, the Adjudicator has not set out his reasons why he was unable to consider the evidence that the applicant had given to the immigration officer. He said that since it was a re-hearing, it was unnecessary for him to deal with the grounds of appeal before him. This approach may render the unified screening mechanism otiose. The Board relinquished its supervisory role under the Ordinance. It may also take away the applicant’s right of appeal before the Appeal Board. 21.The screening process is provided under section 37ZB of the Ordinance and the power of the Board is provided under Schedule 1A of the Ordinance. It is inconceivable that the Board’s investigatory power of the facts should render the screening by the immigration officer otiose. 22.The Adjudicator has not set out the 13 grounds of appeal in the Board’s Decision. He did not say that those grounds were irrelevant to the appeal. As the applicant was legally represented, I may assume that those grounds were prepared by his lawyer, relevant to the challenge against the Director in the screening process. 23.It is clear that the Adjudicator has, for the reasons that he had given, made his Decision without considering the grounds of appeal. Application for leave for judicial review 24.By Form 86 dated 12 June 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Board’s Decision. 25.For the reasons above, I consider that leave should be granted to the applicant for judicial review of the Board’s Decision. CONCLUSION 26.Accordingly, I grant leave to the applicant for judicial review of the Board’s Decision. Dated 13th 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] §6 of the Adjudicator’s Decision dated 28 May 2018 [2] §7 ibid [3] Evidence considered by Appeal Board in an appeal under section 37ZR
[4] Section 37ZQ(2) of the Ordinance:
[5] Section 18(1)(a) of the Ordinance
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