DAS RADHA MOHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 494/2020

[2024] HKCFI 2208

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 494 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Das Radha Mohan (the “Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (the “Board”) dated 10 January 2020 (the “Board’s Decision”) when the Board affirmed the decision of the Director of Immigration dated 30 October 2018 (the “DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (the “Claim”).

Background of the Applicant

2.  As set out in the DOI Decision and the Board’s Decision, the Applicant is a Bangladeshi. He was born on 6 March 1974. He was married with 3 children. They all lived in his home village. The Applicant and all his family members are Das by ethnic group and Hindu by religion.

3.  The Applicant had received 10 years of formal education. From 1994 to 2002 and 2008 to 2010, the Applicant worked in Malaysia and Libya respectively. From 2003 to 2008, he was a farmer in Bangladesh and from 2010 to 2015, he operated his own hardware shop in his home village.

4.  The Applicant had been a supporter of the Awami League (“AL”) until 2012 when he switched to support Bangladesh National Party (“BNP”), another political party in Bangladesh. In around 2012/2013, BNP offered him the position of President of a ward located at district Brahmanbaria and sub-district Nabinager where his home village located. Being the President of a ward, the Applicant was responsible for promoting BNP and seeking public support for it. He also organized meetings and rallies.

The Claim

5.  In September/October 2014, the Applicant was attacked by 10 to 12 AL people at his business premises. They asked the Applicant not to join the BNP meetings. When the Applicant refused their request, they hit him with sticks picked up from the road. His head and shoulder were injured. He lost conscious for 4 to 5 days. He stayed in hospital for 5 days and had 3 stitches for his head wound. It took him about a month to recover.

6.  While the Applicant was in hospital, his shop was burnt down. The Applicant believed that it was done by the AL people as they had threatened to burn down his shop during the attack against him.

7.  The Applicant was scared that he would be harmed or killed by those AL people but he had not reported the incidents to the police.

8.  After the attack, the Applicant spent some days in hiding around the area of his home village. Thereafter, he went into hiding at Dhaka for 8 to 10 days before departing on 17 February 2015 for China. The Applicant did not encounter anything eventful during those days before he left Bangladesh.

9.  From China, the Applicant came to Hong Kong on 10 March 2015.

10.  The Applicant and his family are Das by ethnic group and Hindu by religion. In Bangladesh, Muslims are in the majority. Muslims came to damage or destroy the Hindu temples in the Applicant’s home village. There were only 10 to 15 Hindu families as compared with thousands of Muslim families in the Applicant’s home village. The Applicant and his family members had been under constant verbal abuses as ethnical and religious minority.

11.  The Applicant claimed that hostility against Hindu families had escalated after the attack incident. Out of safety concerns, the Applicant sent his wife and family members to India in 2015/2016 to avoid becoming victims of the conflicts but they had already returned to Bangladesh since then.

12.  The Applicant feared that he would be harmed or even killed by the AL members if he returned to Bangladesh because of his political involvements as a BNP member and also because of his ethnic and religious belief.

Procedural history

13.  The Applicant departed Bangladesh for China by air on 17 February 2015.

14.  On 10 March 2015, the Applicant sneaked into Hong Kong from the Mainland by boat illegally. He was arrested by the police on the same day and was transferred to the Immigration Department on 12 March 2015 for investigation. By a written signification of 13 March 2015, the Applicant lodged the Claim.

15.  The Director of Immigration (the “Director”) had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (the “Ordinance”) (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights, Cap. 383 (the “BOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

16.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (the “Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

17.  On 6 April 2020, the Applicant filed the Form 86 herein (the “Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant named the Adjudicator of the Board as the proposed respondent and the Director as an interested party in the Form 86.

18.  The Applicant filed his supporting affirmation on 6 April 2020 (the “Supporting Affirmation”).

19.  On 24 June 2024, the Applicant filed another affirmation applying to withdraw this intended judicial review application stating that his problem back home had been resolved. He had no problem in his country and his life was safe in Bangladesh (the “Withdrawal Application”).

The DOI Decision

20.  After considering all the relevant circumstances, the Director assessed that the level of risk of harm to the Applicant by the AL people upon his return to Bangladesh was low.

21.  The Director was of the view that the Applicant’s problem was localized in his home village. There was no indication that the acts of the AL people encountered by the Applicant were supported by the whole AL party in Bangladesh. When the Applicant was in Dhaka, he had not encountered any threats from the AL members there.

22.  The Director found that the behaviour of the AL people attacking the Applicant had casted doubt on their real intention to severely and continuously harm the Applicant or kill the Applicant as he claimed. There was no indication that the Applicant had experienced any threats from the AL members during his participation of the BNP activities in the past after he took up the post of President of a ward of BNP. The subsequent attack toward the Applicant was believed to be unplanned as the AL people only picked up sticks from the road to hit the Applicant. They had 10 to 12 in number, they would have severely harmed or killed the Applicant if they had a real intention to do so.

23.  Having regard to the claimed incident, the mode of attack, and in particular the subsequent medical treatment received, the Director did not accept that the ill-treatment inflicted upon the Applicant attained a minimum level of severity. The low intensity of the ill-treatment in the past was indicative of a small future risk of harm upon the Applicant’s return to Bangladesh.

24.  After the 2014 attack, the Applicant did not encounter further physical harm from the AL people. If they had a real intention to severely and continuously harm or kill the Applicant, they would have located the Applicant during his stay at the hospital, instead of damaging his shop as alleged. The Applicant went into hiding around his home village and in Dhaka after the attack. There was no indication that the AL members had used their resources in locating the Applicant. The Director found it questionable that the AL people attacking the Applicant had any intention to severely and continuously harm the Applicant. The Director was of the view that the Applicant’s assertion of being harmed or killed by the AL people upon his return to Bangladesh was far fetching and speculative.

25.  The Applicant had been living in his home village for many years. There was no indication that he had experienced any physical attack or severe ill-treatment personally in the past for being the ethnical and religious minorities. The Director assessed that the Applicant’s problem with the AL people was solely a political dispute, rather than relating to the Applicant’s ethnic origin and religious belief. Furthermore, the return of the Applicant’s wife and his children from India to Bangladesh at a date unknown to the Applicant suggested that the perceived risk of harm faced by them was not as imminent as the Applicant asserted.

26.  The Applicant had never sought help from the Bangladeshi police. There was no indication that the Bangladeshi government knew or had reasonable ground to believe of his claimed feared treatment but would fail to take action. After considering the relevant country of origin information (“COI”), the Director formed the view that state protection would be an effective and practical way to solve the Applicant’s problems should he face threats from individual AL members upon his return to Bangladesh.

27.  The relevant COI showed that the Bangladeshi police and authorities would carry out their duties and would take actions against acts or abuse by law offenders, disregarding their background.

28.  There was no evidence to assert that the Bangladeshi government was involved in, indifferent to or provided any form of encouragement to the AL members to attack or threaten the Applicant. The Applicant was able to apply for his passport and did not encounter anything eventful during the immigration clearance when he departed Bangladesh in 2015. The Director was of the view that the Applicant was not targeted by the Bangladeshi government.

29.  The Director did not accept that reasonable state protection would not be available to the Applicant if he resorted to upon his return to Bangladesh.

30.  The Director opined that the Applicant’s problem in Bangladesh was just a localized one. Bangladesh is a large country spreading across over 148,000 sq. km. with an estimated population of over 157 million people as at July 2017. The Applicant had many viable alternatives to relocate to other districts of Bangladesh such as Chittagong or Dhaka with high population density. Internal relocation is permissible under the laws in Bangladesh.

31.  The Director viewed that the Applicant’s perceived threat of harm by those AL people was a localized issue only. Internal relocation alternatives were available and reasonable, which would further lower or negate the perceived risk of harm from the AL people in the Applicant’s home village.

32.  Being an able-bodied adult with 10 years formal education and many years working experience, the Director was of the view that it was not unreasonable for the Applicant to relocate to other areas in Bangladesh outside his home village to prevent any perceived risk of feared treatment from the AL people in his home village upon his return to Bangladesh.

33.  For the reasons set out in the DOI Decision, the Director did not accept that the Applicant would face a real and personal risk of being subjected to ill-treatment prohibited by BOR 3 upon his return to Bangladesh. The Director also found that the Applicant failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2 upon his return to Bangladesh.

34.  The Director assessed the risk of the ill-treatment feared by the Applicant to be low. The Director did not accept that the Applicant’s fear was well-found. The Director assessed that the Applicant’s case did not warrant non-refoulement protection on the grounds of persecution risk.

35.  For reasons set out in the DOI Decision, the Director assessed the claimed risk of ill-treatment to be not real and unforeseeable. The Director did not accept that there were substantial grounds for believing that the Applicant would be subject to torture upon his return to Bangladesh.

36.  Furthermore, the Applicant’s claimed ill-treatment was not inflicted by or at the instigation of, or with the consent or acquiescence of government officials.

37.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

38.  The Board after considering the evidence was not satisfied that there was any risk of the requisite degree of the alleged ill-treatment if the Applicant was to be refouled.

39.  The Board noted that the Applicant had not mentioned the allegation of threat to kill him in his claim form for the Claim or when interviewed by the Immigration Officer. The Applicant offered no satisfactory explanation to the Board at the hearing before the Board.

40.  The Board also found that the attack against the Applicant in 2014 was not premediated; there was no residuary pain and suffering in the Applicant from the attack; and the AL people did not pay much attention to the Applicant or his family after the attack.

41.  The Board found that there was no risk of any requisite degree of the alleged ill-treatment for the torture risk, the BOR 2 risk, the BOR 3 risk or the persecution risk claimed.

42.  The Board had considered the COI and was satisfied that the Bangladeshi government was willing and able to afford reasonable level of state protection to the Applicant should he be refouled.

43.  The Board after considering relevant factors concluded that the Applicant could relocate.

44.  The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

45.  In a judicial review, the court does not step into the shoes of the decision makers.

46.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the 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”.

47.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

48.  In the Supporting Affirmation, the Applicant raised the following complaints:

(1)  He lodged the Claim on 13 March 2015 which was refused only by 30 October 2018. There was substantial delay in processing the Claim.

(2)  He was not legally represented at the appeal hearing before the Board.

(3)  The hearing bundle and other documents were given to him just a few days before the appeal hearing. The documents were in English and he had only limited skills in English. He was confused in terms of what was happening. He said that the lack of care by the Board to make appropriate arrangements in relation to the hearing bundle rendered the hearing unfair.

(4)  He was aggravated that his credibility was found questionable.

(5)  The Board significantly relied on source of news which is not officially recognized, hearsay or outdated.

(6)  His BOR 2 risk claim had not been screened by the Immigration Department.

(7)  The Appeal was refused on unacceptable and unexplainable grounds. The Director and the Board had rejected the Claim without any proper inquiry and without carefully understanding his situation. He asserted that: “To understand my claim fairly, my immigration officer and the Adjudicator are invited to tour my country and ask those familiar with his case what real danger I would face if I am returned there.” (§15 of the Supporting Affirmation)

49.  There are many pending claims for non-refoulement protection. The Director has to deal with a large number of cases with limited resources. It took the Director more than 3 years to investigate and decide the Claim is understandable. I do not agree that there was delay on the part of the Director in handling the Claim. Furthermore, the Applicant has been released on recognizance since 11 April 2015. I do not see that the length of time taken up by the Director in processing the Claim has caused any prejudice or unfairness to the Applicant. In the circumstances of this case, I do not agree that the length of time taken up by the Director in processing the Claim will per se render the Board’s Decision liable to be quashed by this court.

50.  As to the Applicant’s complaint that he was not legally represented at the hearing before the Board, the Applicant did not explain why he did not have the service of duty lawyer when he appealed to the Board. As the Court of Appeal pointed out in Re Zunariyah [2018] HKCA 14:

“18. As a standard practice, the Director would have drawn [the claimant’s] attention to the Duty Lawyer Service and asked her to contact them as soon as possible. The Duty Lawyer Service provided legal representation in appeal to the Board for cases with merit. Neither Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings. The claimant already had the benefit of legal representation in presenting her case to the Director of Immigration including presence of lawyer at the interview by the immigration officer. Duty lawyer service is available for the appeal proceedings though it is subject to a merit test.”

51.  The high standards of fairness do not prescribe that a non-refoulement claimant has an absolute right to legal representation at all stages of the process. (Vu Hong Diep v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2023] HKCA 1378 at §17) In the absence of any assertion by the Applicant that he had applied to the Duty Lawyer Service for legal assistance but the Duty Lawyer Service had not properly applied the merit test in refusing his application, it does not lie in his mouth to complain of the lack of legal representation in the proceedings before the Board.

52.  The Applicant complained that documents and hearing bundle were provided to him only a few days before the hearing with a weekend intervening, leaving him insufficient time to prepare for the hearing. The documents were substantially in English which he was not familiar with and he could not afford interpretation service.

53.  As pointed out by DHCJ To in Re Busto Jocelyn Manuel [2024] HKCFI 839 in §14 that It could not have been the intention of any authority laying down the principle of high standards of fairness that the principle would include provision of interpretation service at any time a claimant desired or required. It was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. He has to live with or cope with his language disability. He cannot expect to have the luxury of having every document translated into his native language for his benefit as and when he requires. He has to find assistance himself from among his friends and his ethnic community. I note that the Supporting Affirmation contained an interpretation clause, which means that the Applicant was able to seek language assistance to interpret the contents for his benefits.

54.  Furthermore, the hearing bundle should be basically made up of his claim form, the record of his screening interview, the DOI Decision and the COI. The Applicant knew what was contained in his claim form which was filled in by him with the assistance of an interpreter. He knew what was contained in the record of screening interview which he attended with the assistance of an interpreter. The record should have been read back to him in his own language before he signed the same. Recognizing the limitation in his English language ability and importance of his claim, he ought to have taken notes, at least very brief ones, to remind himself of what had said or written rather than relying on the host country to provide him the convenience of interpretation at his fingertips.

55.  I see no merits for the Applicant to argue that the lack of language assistance had jeopardized his rights in this case.

56.  The Applicant has not specified how many days he had had in this case to prepare for the oral hearing before the Board. Taking into account that there was an intervening weekend, it had to be more than 2 days. The period might be short but the Applicant should not have indulged himself for the weekend and forgotten about his appeal as if he was a tourist visiting Hong Kong. Furthermore, time should start to run from the date of his notice of appeal, i.e. 12 November 2018. The oral hearing was held on 25 November 2019. In between, the Applicant had more than 1 year to find out what the appeal bundle was about. If he needed more time for preparation. He could have raised that with the Board at the hearing which the Applicant did not.

57.  Having regard to the fact that the Applicant should be familiar with what was contained in the hearing bundle and he did not provide any particulars or documentary evidence to corroborate this complaint, nor did he raise any such issue during the hearing before the Board when he was able to give evidence and make representation of his case to the Board without any problem, I do not find any merits in this complaint of the Applicant.

58.  To challenge the finding of the Board on his credibility, the Applicant in effect seeks to challenge the finding of fact of the Board which is not permissible in a judicial review. In fact, the Board had set out in the Board’s Decision facts supporting his finding on the Applicant’s credibility especially in §§10, 23(6), and 26 to 29 of The Board’s Decision.

59.  The Applicant complained that the Board relied on COI which were unofficial, hearsay or outdated. COI by nature is hearsay evidence. The COI considered by the Board had been listed in the List of References annexed to the Board’s Decision. They came from official websites of government authorities, international organizations and newspapers. They included publications up to October 2018 when the oral hearing before the Board took place on 25 November 2019. I see no merits in this complaint of the Applicant.

60.  The Applicant complained that his BOR 2 risk claim had not been screened by the Immigration Department. This is plainly wrong. In §3 of the DOI Decision, it was expressly stated that the Claim was assessed on all applicable grounds including (but not limited to) right to life under Article 2 of BOR. More detailed discussions on the BOR 2 risk claim were set out in §§24 to 26 of the DOI Decision. The Applicant’s BOR 2 risk had also been considered by the Board in §§22(2) and 39 to 41 of the Board’s Decision. I find this ground for the intended judicial review wholly devoid of merits.

61.  The Applicant said that the Appeal was refused on unacceptable and unexplainable grounds. He also complained that the Director and the Board had rejected the Claim without any proper inquiry and without carefully understanding his situation. The Applicant provides no particulars or specifics to substantiate these complaints. He said that the Director and the Adjudicator should have visited his country to understand his claim.

62.  There is no legal or legislative basis to require the Director or the Board to actually visit the risk state or country of origin to conduct any investigation of a non-refoulement claim. While the inquiry is one of joint endeavour, the burden is on the Applicant to prove his claims (ST v Betty Kwan and others, CACV 115/2013, 26 June 2014). The Director and the Board should conduct proper enquiries into current and relevant COI as regard his home country in their assessment and determination of his claims which the Director and the Board had done in this case.

63.  In the DOI Decision and the Board’s Decision, the Director and the Board had set out the reasons for their respective findings leading to their decisions in rejecting the Claim and the Appeal.

64.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

65.  Having rigorously examined the Board’s Decision, the DOI Decision and the Supporting Affirmation with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed very high standards of fairness.

66.  The Board was not satisfied that there was any risk of the requisite degree of the alleged ill-treatment if the Applicant was to be refouled. It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Board, which the court on a judicial review will not interfere save when such findings involved errors of law, procedural unfairness and irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Board’s Decision is without fault. The proposed judicial review is not reasonably arguable.

The Withdrawal Application

67.  The Applicant subsequently filed the Withdrawal Application on 24 June 2024 stating that his problem back home had been resolved. He had no problem in his country and his life was safe in Bangladesh.

68.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of his own volition.

69.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

70.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

71.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss his application for leave to apply for judicial review.

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