Hassan Mahedi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 931/2018 on BabelCite. This High Court CFI judgment was delivered on 30 April 2019.
1. The Applicant is a national of Bangladesh. He is now aged 25 (DOB: 16 June 1993).
Cited by 2 cases · Cites 5 cases
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HCAL931/2018 [2019] HKCFI 981 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 931 of 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 25 (DOB: 16 June 1993). 2.The Applicant claimed he would be harmed or killed by Liton Sheikh (“Liton”) and other members of the Awami League (“AL”). He also said he was wrongly accused and persecuted by the police in his country. 3.The Applicant said his father was a leader of the Bangladesh Nationalist Party (“BNP”). In 2012, the Applicant joined Jubo Dal, which was the youth wing of BNP. 4.The Applicant said AL was the ruling party. It persecuted people related to BNP. Liton was a local AL leader. 5.Since 2013, the AL people had harassed, blackmailed, threatened and assaulted the Applicant. The police had also detained the Applicant several times and made serious false accusations against him. The Applicant was maltreated in the police station though he was eventually released each time. 6.The Applicant lived away from home. He finally left Bangladesh for China on 13 August 2014. He came to Hong Kong illegally on 17 August 2014 and was arrested by the police on the same day. The Applicant raised a non-refoulement claim on 19 August 2014. 7.The Applicant said his enemies were still harassing his family and looking for him. He did not think state protection and internal relocation were available to him. 8.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]. 9.On 25 May 2018, the Applicant applied for leave for judicial review. Timeline 10.Things happened in this order: –
Respondent/Interested party 11.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 complaint on a rehearing basis. 12.In Re Moshsin Ali, the Court of Appeal ruled “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] 13.In Form 86, the Applicant named the Board as respondent and the Director as interested party. The Board is the putative respondent; the Director is the putative interested party. The Director's decision 14.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 15.The Applicant appealed to the Board. The Adjudicator interviewed him on 21 March 2018. 16.The Adjudicator found the Applicant was evasive and not forthcoming in his answers. The Applicant claimed he had joined Jubo Dal for years and his father was a leader of BNP. Yet, the Applicant could not correctly state the full name of Jubo Dal or say correctly about its registration process. Nor could he tell how Jubo Dal was related to BNP. The Applicant was also unable to give specific evidence of his father’s position in BNP. The Adjudicator found the Applicant's evidence vague, evasive, unpersuasive and confused. There were inconsistent and implausible features in the Applicant's allegations. The Adjudicator did not believe the Applicant. She did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 18 May 2018, the Adjudicator refused the Applicant's appeal with respect to all the four applicable grounds. Grounds of judicial review 17.The Applicant complained the Adjudicator unlawfully fettered her discretion by refusing his appeal; acted in a procedurally unfair manner; rendered unreasonable or irrational decision; failed to meet the greater care and duty owed to a self-represented claimant. 18.The Applicant further complained he was given the appeal bundle only several days before the appeal hearing. He was unrepresented at that time and 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 during the appeal hearing. He complained the Adjudicator failed to make appropriate arrangement in relation to the service of the hearing bundle. 19.The Applicant also accused the Adjudicator relied on outdated cases, information not officially recognized or simply hearsay. Court hearing 20.The hearing took place on 7 September 2018. The Applicant was present. A Bengali interpreter provided service in court. 21.The Applicant said a friend helped him to prepare Form 86 and the affirmation. He confirmed all the grounds of his application were in the documents. 22.The Applicant also confirmed he had submitted all to the Director and the Adjudicator for their consideration of his non-refoulement claim. Discussion 23.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 24.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: –
25.The Applicant mentioned he was not legally represented for the appeal. He had been represented by the Duty Lawyer Service up to the Director's decision dated 12 August 2016. 26.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. 27.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 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. 28.The Applicant complained he received the appeal bundle only a few days before the Board hearing. 29.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. 30.The Applicant said the Director served the appeal bundle on him on 14 March 2018 before the Board hearing scheduled for 21 March 2018. That was 7 calendar days (or 6 working days) prior to the Board hearing. Thus, the bundle was served on the Applicant in time. 31.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. 32.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. 33.The Applicant said he answered all the questions honestly in the Board hearing.[11] That means he knew what was asked and how to answer. He was not confused. 34.There was no evidence the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay. 35.I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. 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. 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. 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. Conclusion 36.The Applicant's complaints are not reasonably arguable. He has no realistic prospect of success in the sought judicial review. I therefore refuse to grant him leave for judicial review. Dated the 30th day of April 2019
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 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 3. |
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