Nannu Md v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 482/2018 on BabelCite. This High Court CFI judgment.
1. The Applicant is a national of Bangladesh. He is now aged 31 (DOB: 17 March 1987).
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HCAL482/2018 [2018] HKCFI 2773 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 482 2018 BETWEEN
Application for Leave to Apply for Judicial Review 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 31 (DOB: 17 March 1987). 2.The Applicant claimed he would be harmed or killed by members of the Awami League (“AL”). 3.The Applicant joined the Bangladesh Nationalist Party (“BNP”) in 2009. He took part in the party’s activities and encouraged other people to join BNP. That made him a target of AL. He was often threatened verbally. His brother was also a BNP member. 4.In February 2012, the AL people came to look for the Applicant's brother. The Applicant was assaulted by some AL members. He was hospitalised for a week. After leaving the hospital, he went with his father and a friend to the police station to make a report. The police, however, ignored him. 5.A few days later, the Applicant was told by his father that the AL people were furious because he attempted to make a report to the police. 6.Two weeks later, some AL people went to the shop of the Applicant’s father. They asked him to close down the shop. The Applicant's father refused. A fight broke out. Those men vandalized the shop and assaulted the Applicant and his father. They evicted the two from the shop and locked up the place. The threatened to harm the Applicant if they saw him again. The Applicant was injured but not severely. 7.A week later, the Applicant left home for Dhaka. There he still received some threatening calls from his enemies. 8.The Applicant’s brother left Bangladesh for Singapore in August 2012. He told the Applicant to leave the country too. 9.The Applicant later left Bangladesh for India in October in 2012. He soon returned to Bangladesh and planned to come to Hong Kong. 10.On 18 April 2013, the Applicant left Bangladesh for China. Ten months later, on 23 February 2014 he sneaked into Hong Kong from China. The Applicant was arrested by the police on 7 March 2014. He subsequently raised a non-refoulement claim. 11.The Applicant said his father was still safe in Bangladesh but he himself could not return there because his enemies had a strong network in the country. Internal relocation was not viable. 12.The Applicant claimed the Bangladesh police were controlled by AL so there would not be any state protection for him. 13.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]. 14.On 26 March 2018, the Applicant applied for leave for judicial review. Timeline 15.Things happened in this order: –
Respondent/Interested party 16.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. 17.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] 18.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 19.In his decision dated 18 April 2017, the Director did not accept the Applicant faced any torture risk, 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 claim with respect to all the four applicable grounds. The Board's decision 20.The Applicant appealed to the Board. He appeared in person before the Adjudicator on 24 July 2017. 21.The Adjudicator found that even on the Applicant’s own account of events, there was no evidence the Applicant had been inflicted with ill-treatment to a minimum level of severity. The Adjudicator found the Applicant’s enemies targeted the properties of his family rather than the Applicant himself. The complained situation was not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). There was no evidence of state involvement. The Adjudicator considered the risk faced by the Applicant, if any, was low. He noted the Applicant had only tried to report the matter to an officer of the local police station. The Adjudicator studied relevant country-of-origin information ("COI"). He was satisfied reasonable state protection was available to the Applicant in any event. The Adjudicator also noted the Applicant was able to live in Dhaka for some time uneventfully except receiving some threatening calls. He considered internal relocation was viable in the Applicant’s case. 22.On 16 March 2018, the Adjudicator refused the Applicant's claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk. Grounds of judicial review 23.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. 24.The Applicant 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. 25.The Applicant further complained the Adjudicator relied on outdated cases or information not officially recognized or simply hearsay. Court hearing 26.The hearing took place on 12 July 2018. The Applicant was in person. A Bengali interpreter provided service in court. 27.The Applicant said a ‘friend’s friend’ helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. The Applicant had nothing to add to those grounds. 28.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 29.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 30.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: –
31.The Applicant mentioned he was not legally represented during the appeal stage. He had been represented by the Duty Lawyer Service up to the Director's decision dated 18 April 2017. 32.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. 33.The Applicant raised his language problem. In the current application, a ‘friend’s 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, the Applicant was assisted by qualified interpreters while 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. 34.The Applicant complained he received the appeal bundle on 17 July 2017, only seven days before the Board hearing scheduled for 24 July 2017. 35.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. 36.The Applicant received the appeal bundle 7 calendar days (or 6 working days) prior to the Board hearing. The bundle was served on the Applicant in time. 37.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. 38.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 his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing. 39.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. 40.The Applicant complained the Adjudicator relied on outdated cases or information not officially recognized or simply hearsay. The Applicant failed to be specific and there was no evidence of such complaint. 41.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 42.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 24th 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 8 on page 4. |
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