Case Document

100%Judiciary

HCAL576/2018

[2019] HKCFI 1976

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 576 of 2018

BETWEEN

	Amin Khan	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)

Following:

consideration of documents only

consideration of documents and oral submission by the Applicant in open court

Order by Deputy High Court Judge Josiah Lam:

Leave to apply for judicial review be refused.

Observations for the Applicant

Background

1.The Applicant is a national of Bangladesh. He is now aged 34 (DOB: 18 April 1985).

2.The Applicant claimed he would be harmed or killed by the Bangladesh Nationalist Party (“BNP”) and the Rapid Action Battalion (“RAB”).

3.The Applicant said he joined the Chhatra League (“CL”) in 2000. CL was the student wing of the Awami League (“AL”). BNP was the ruling party and AL was the main opposition party.

4.One day in August 2005, the Applicant and some CL members were attending a ceremony. A number of armed BNP people came to attack them. The Applicant was injured. The matter was reported to the police but the police ignored their complaint.

5.In 2006, some BNP people went several times to the Applicant's home to look for him. The Applicant was not there. Those BNP people told the Applicant's family that they would kill the Applicant.

6.There was an occasion when the BNP people found the Applicant. They assaulted him.

7.The Applicant learnt that other CL members were also threatened.

8.BNP introduced RAB to deal with their enemies. RAB had killed the local CL leader Habib. The Applicant heard RAB was also looking for him. He thus moved to live with his relatives in Noakhali. The police went to the Applicant's home to look for him. They arrested the Applicant's uncle and released him 12 hours later.

9.The Applicant’s parents made arrangement for the Applicant to leave Bangladesh. On 9 September 2007, the Applicant left his country for China. He was arrested by the police in Hong Kong for illegal remaining on 25 October 2007. He said he just came to Hong Kong. The Applicant raised a torture claim[1] on 10 November 2007.

10.On 24 October 2013, the Director of Immigration (“the Director”) rejected the Applicant’s torture claim. [There was no evidence of appeal.]

11.On 23 December 2013, the Applicant raised a non-refoulement claim.

12.The Applicant said he last contacted his mother in 2016. He was told his enemies were still looking for him even though AL had come to power since 2009. The Applicant did not believe state protection and internal relocation were available to him in Bangladesh.

13.In the ensuing two-tier unified screening mechanism, the Director and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively rejected the Applicant’s non-refoulement claim with respect to the remaining three applicable grounds: (i) risk of persecution[2], (ii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iii) risk of violation of the right to life (BOR2 risk)[4].

14.On 9 April 2018, the Applicant applied for leave for judicial review.

Respondent/Interested party

15.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.

16.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]

17.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

18.On 10 November 2007, the Applicant raised a torture claim. The Director rejected his torture claim on 24 October 2013. There was no evidence of appeal.

19.On 23 December 2013, the Applicant raised a non-refoulement claim. The Director rejected his non-refoulement claim with respect to persecution risk and BOR3 risk on 29 August 2016.

20.On 2 August 2017, the Director further rejected the Applicant’s non-refoulement claim with respect to BOR2 risk.

The Board’s decision

21.The Applicant appealed to the Board on 7 September 2016. The Adjudicator interviewed him on 23 November 2017.

22.The Adjudicator found there were major discrepancies between what the Applicant told the Director and what he said in the Board hearing, including when he became involved in political activities and the circumstances relating to his uncle’s arrest. The Applicant also displayed very little knowledge of AL and Habib. The Adjudicator concluded the Applicant was incredible or at least unreliable. She found the Applicant was at most a low-level supporter of AL. There was no reason why the alleged enemies would still target him after the lapse of so many years. The Applicant indicated that he would not join AL again if he returned to Bangladesh. The Adjudicator also found reasonable state protection was available to the Applicant in any event.

23.The Adjudicator did not accept the Applicant faced any persecution risk, BOR2 risk or BOR3 risk. On 26 March 2018, she rejected the Applicant’s non-refoulement claim with respect to those three applicable grounds.

Grounds of judicial review

24.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.

25.The Applicant further 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.

26.The Applicant complained the Adjudicator relied on outdated cases, information not officially recognized or simply hearsay.

Court hearing

27.The hearing took place on 24 September 2018. The Applicant was in person. A Bengali interpreter provided service in court.

28.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 to his grounds.

29.The Applicant confirmed he had submitted all of his case to the Director and the Adjudicator.

Discussion

30.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

31.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: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” [7]

32.The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 29 August 2016. He said there was a lack of legal representation for his appeal to the Board.

33.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 his case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

34.The Applicant also complained there was a lack of language assistance.

35.It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.[9]

36.In the current application, a friend helped the Applicant 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 being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

37.The Applicant complained he received the appeal bundle only a few days before the Board hearing.

38.According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[10] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[11], 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.

39.The Applicant said he received the hearing bundle on 16 November 2017. That was 7 calendar days (or 6 working days) before the Board hearing scheduled for 23 November 2017. The bundle was served on the Applicant in time.

40.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.

41.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.

42.The Applicant said he answered all the questions honestly in the Board hearing.[12] That means he knew what was asked and how to answer. He was not confused.

43.There was no evidence the Adjudicator took into account outdated cases, information not officially recognised or simply hearsay.

44.I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding 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

45.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 to apply for judicial review.

Dated the 9^th day of August 2019

(Henry Ng)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 9/8/2019 Amin Khan Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 9/8/2019 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 4707/16/9/86/B628 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 785/16 & RBCZ/90002753/17 (formerly RBCZ/2001919/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

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] See Re Zaman Muhammad [2018] HKCA 486 at [13]; Re Gurnishan Singh [2018] HKCA 704 at [13].

[10] 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.

[11] 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.

[12] The Applicant's affirmation, Point 8 on page 4.

Cites 7 cases

Cases cited in this judgment