Hossain Belayet v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 738/2018 on BabelCite. This High Court CFI judgment was delivered on 23 September 2019.
1. The Applicant is a national of Bangladesh. He is now aged 24 (DOB: 15 March 1995).
Cited by 1 case · Cites 5 cases
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HCAL738/2018 [2019] HKCFI 2340 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 738 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 24 (DOB: 15 March 1995). 2.The Applicant claimed he would be harmed or killed by the Awami League (“AL”) and its student wing, the Bangladesh Chhatra League (“BCL”). He was a member of the Bangladesh Islami Chhatra Shibir (“BIC”). BIC was the student wing of Jamaat-e-Islami (“JI”). The Applicant’s enemies forced him to join them but he refused. 3.The Applicant said he joined BIC in May 2012. He became an executive member and the publicity secretary of the Comilla Metropolitan City Branch in January 2013. 4.BIC was in rivalry with BCL. On several occasions, the AL and BCL people threatened to kill the Applicant if he did not quit BIC to join them. 5.In March 2013, the Applicant was approached by his enemies. They told him to quit BIC to join BCL. The Applicant refused. He was assaulted but managed to escape. 6.Two BIC members, Karim and Rubel, were studying in the same college with the Applicant. They were aides to the Applicant. In April 2013, the two were abducted by some people. The Applicant believed the kidnappers were from BCL. The matter was reported to the police but Karim and Rubel remained missing. 7.Later, some BCL people again threatened the Applicant to leave BIC or he would also ‘disappear’. He was assaulted but got rescued by others. 8.The Applicant said he was in fear. He went into hiding and finally left Bangladesh for China on 12 September 2013. 9.The Applicant sneaked into Hong Kong on 20 September 2013. He was caught then. He raised a non-refoulement claim on 23 September 2013. 10.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 (“the Board”) respectively rejected 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]. 11.On 27 April 2018, the Applicant applied for leave for judicial review. Respondent/Interested party 12.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. 13.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] 14.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. The Board is the putative respondent; the Director is the putative interested party. The Director's decision 15.In his decision dated 25 January 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 rejected the Applicant’s claim with respect to all the four applicable grounds. The Board's decision 16.The Applicant appealed to the Board. The Adjudicator interviewed him on 6 February 2018. 17.The Adjudicator found a number of inconsistent and unconvincing features in the Applicant’s claim. For example, the Applicant could not explain well why he could rise to become an executive member and the publicity secretary of the Comilla Metropolitan City Branch of the party in January 2013 if he was just an associate member in December 2012. 18.The Applicant alleged he had joined JI even before he joined BIC. Yet, he lacked sufficient knowledge of JI. For example, he did not even know JI had been banned by the Bangladesh court since 1 August 2013 (before he left the country on 12 September 2013). 19.The Adjudicator found the membership documents submitted by the Applicant were dubious. 20.The Adjudicator did not accept the Applicant was a truthful witness. He did not attach weight to the Applicant's documents. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 16 April 2018, he rejected the Applicant's appeal with respect to all the four applicable grounds. Grounds of judicial review 21.The Applicant said 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. 22.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. 23.The Applicant also complained the Adjudicator relied on outdated cases or information not officially recognized or simply hearsay. Court hearing 24.The hearing was scheduled for 7 September 2018. The Applicant was absent. The Bengali interpreter was able to reach him on the phone. The Applicant told the interpreter that he had not received the notice of hearing. He said he was suffering from tuberculosis and could not come to court right away. 25.The court ordered the Applicant to write to the court within 7 days to explain for his absence with proof. Failing which, the court would determine his application on consideration of documents only. 26.On 11 September 2018, the court received some documents from the Applicant. The Applicant said in his letter that he had been suffering from tuberculosis. He had to attend the government clinic everyday to take drugs. He also had to go to the Wong Tai Sin Hospital twice a week. There was also a government doctor’s certificate. It said the Applicant had to receive treatment, which was expected to last till late August 2019 depending on his clinical response and progress. The doctor said the Applicant was expected to go to the clinic everyday for medication but it would only take the Applicant a few minutes each time. 27.The Applicant had tuberculosis, which certainly required treatment. The documents did not say when he would recover. The doctor said the Applicant would need only a few minutes to take drugs at the clinic daily. He did not say the Applicant was not able to attend court at all. The court thus sent a letter dated 27 September 2018 to the Applicant, telling him that he could name such date and time convenient to him for the hearing of his application within two months. If he could not come at all, then he could make written submission to be sent to court. The same message was also conveyed to the Applicant on the phone by a Bengali interpreter. The Applicant told the interpreter that he understood the court’s instruction and he would inform the court of such date and time when he could come at his convenience. 28.The court had not heard anything further from the Applicant until he sent in a letter dated 9 January 2019. The Applicant said in the letter that he was undergoing treatment and had been admitted to the Wong Tai Sin Hospital from 6 December 2018 to 10 December 2018. He asked for his application to be adjourned until he was physically sound. He said he had not got enough energy. He said he did not have money to retain private lawyer but he would apply for Legal Aid. 29.On 23 January 2019, the court ordered the Applicant to submit a doctor’s certificate to prove that he really could not have complied with the court’s previous order dated 27 September 2018, i.e. he could name such date and time convenient to him for the hearing of his application and if he could not come at all he could make written submission to be sent to court. It was made clear to the Applicant in the notice dated 23 January 2019 that if he could not provide the requisite medical proof, the order dated 27 September 2018 would stand, i.e. his application would be determined on consideration of documents only. 30.The notice dated 23 January 2019 was sent to the Applicant’s reported address. It was returned and marked ‘Refused’. 31.The court has not heard anything further from the Applicant. His application is thus determined on consideration of documents only. Discussion 32.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 33.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: –
34.The Applicant mentioned there was insufficient legal representation. He had been represented by the Duty Lawyer Service up to the Director's decision dated 25 January 2017. 35.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. 36.The Applicant raised his language problem. 37.In the current application, the Applicant's affirmation and Form 86 were prepared in English. Apparently, the Applicant could find people to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while 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. 38.The Applicant complained he received the appeal bundle only a few days before the Board hearing. 39.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. 40.The Applicant said he received the appeal bundle on 30 January 2018. That was 7 calendar days (or 6 working days) before the Board hearing scheduled for 6 February 2018. The bundle was served on the Applicant in time. 41.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. 42.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. 43.The Applicant said he answered all the questions honestly in the Board hearing.[11] That meant he knew what was asked and how to answer. He was not confused. 44.There was no evidence that the Adjudicator took into account outdated cases or information not officially recognised or simply hearsay. 45.I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding 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. 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. Conclusion 46.The Applicant's complaints are not reasonably arguable. He has no realistic prospect of success in the sought judicial review. I refuse to grant him leave to apply for judicial review. Dated the 23rd day of September 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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