NASIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 860/2019

[2021] HKCFI 1560

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 860 of 2019

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of the documents only;  or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 22 March 2019 (the “Decision”). 

2.  The Applicant is a Bangladeshi national.  He sneaked into Hong Kong from Shenzhen and was arrested by the police on 26 November 2014 for illegally remaining in Hong Kong.  He was referred to the Immigration Department.  On 29 November 2014, he applied for non-refoulement protection claiming that he will be harmed or killed, if refouled, because he was targeted for political violence.

3.  In due course, his non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By a Notice of the Decision dated 27 June 2017, the Director of Immigration (the “Director”) rejected his claims (the “Notice”).  He lodged an appeal to the Board against the decision of the Director in the Notice.  His appeal was dismissed by the Board’s Decision dated 22 March 2019.  He now seeks for leave to apply for judicial review of the Board’s Decision.

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form (“NCF”) which was prepared by him with assistance of the Duty Lawyer Service. 

5.  The Applicant was a supporter of the Bangladesh Nationalist Party (“BNP”).  BNP was defeated by the opponent political party, Awami League (“AL”), which became the ruling party.

6.  One afternoon in March 2014, while the Applicant and three BNP members were in the marketplace in his village, they were approached by two AL leaders, Sumon and Azim, and 10 to 12 members.  They told the Applicant’s group not to hold any political programs in the village.  The two groups argued.  The AL group assaulted the Applicant’s group with bamboo and wooden sticks.  The Applicant’s group fled, suffering bruises and abrasions.  After receiving medical treatment, they went to make a complaint to the police station.  The duty officer refused to accept their complaint as AL leaders were involved.

7.  Around 10 pm the same day, some AL members led by Sumon came to the Applicant’s home. Sumon shouted angrily and threatened to kill the Applicant.  He pointed a pistol at the Applicant and told him to consider joining AL or leaving the village.  The Applicant’s parents were scared and sent him to live with his paternal aunt in Narayanganj, about 15 miles away.

8.  One night in July 2014, Sumon and four to five AL members appeared in the Applicant’s aunt’s home. Sumon told the Applicant that he had either to join AL or leave the area as he was proving to be adamant and Sumon found him intolerable.  The Applicant’s aunt pacified Sumon saying that there was a likelihood that she could convince the Applicant to join AL.  Sumon and his men left.

9.  Then, the Applicant’s father arranged for the Applicant to stay with a family friend in Dhaka who then arranged for his journey to Hong Kong via Mainland China.

The finding of the Board

10.  The Board had concerns about the Applicant’s claimed BNP membership.  Considering his alleged activities, active participation and long term support for the party, the Board was concerned that he was unable to produce evidence of his membership in BNP; unfamiliar with its constitution and history; and unable to explain how he became a member, including the formalities and the subscription.

11.  The Board found significant discrepancies in the Applicant’s evidence about the fight at the marketplace in terms of number of assailants, their identities, the degree of violence, the year in which the attack took place and whether a complaint was made to the police station.  Notably, the Applicant told the Board at the oral hearing that he came to Hong Kong after the attack in the marketplace in 2013 and not 2014 and made no mention about Sumon’s visit on the night after the assault at the marketplace or the visit to his aunt’s home in July 2014 or his having lived with his aunt in Narayanganj after Sumon’s threat.  Instead, the Applicant mentioned a second fight between his neighbour Moslem and Moslem’s sons, Azim and Sumon, which he had not previously raised in his NCF and at the screening interview.  He was unable to explain the discrepancies to the Board.

12.  The Board did not find the Applicant a credible witness and did not accept any of his claims to be credible.  Specifically, the Board did not accept that the Applicant is or was an active supporter or member of BNP and that he ever campaigned or canvassed votes for BNP during general elections.  Based on the Country of Origin Information (“COI”), the Board did not accept that ordinary supporters of BNP face a real risk of any of the proscribed forms of harm.  The Board did not accept that the Applicant was attacked by AL members in the marketplace or in the second attack not mentioned in the NCF; that he was threatened by Sumon with a pistol at the night after the attack at the marketplace; and that his neighbour Moslem is an AL member or supporter or had ever threatened or harassed him, his father or brother as the Applicant claimed at the hearing before the Board.

13.  In summary, the Board considered there was no real risk that the Applicant would face any of the proscribed forms of harm should he return to Bangladesh.  In other words, there is no factual basis to support his claim on any of the four applicable grounds under the USM.

Grounds for judicial review

14.  The Applicant advanced four grounds of appeal in his Notice of Application for leave to apply for judicial review:

(1) the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2) the Board acted in a procedurally unfair manner in dealing with the appeal;

(3) the Board’s decisions to refuse the appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness; and

(4) the Board failed to meet the greater care and duty owed to a self-represented claimant.

Ground (1)

15.  Under Ground (1), the Applicant accused the Board of having unlawfully fettered its discretion by refusing his appeal on the grounds that he did not satisfy the requirement for non-refoulement protection.  This cannot be a valid ground for application for leave.  If the Applicant did not satisfy the requirement for non-refoulement protection, the Board has no discretion to exercise but to uphold the decision of the Director in the Notice and dismiss his appeal.  The real question is whether he truly met the requirements for protection.   This is a finding of facts within the province of the Board.  In this regard, the Decision of the Board is reviewable for having committed errors of law, procedural unfairness, unreasonableness or irrationality.  Having considered the totality of the evidence and the other grounds of judicial review, the Court was satisfied that there is no substance in this ground of application.

Ground (2)

16.  Under Ground (2), the Applicant accused the Adjudicator, ie the Board, of having acted in a procedurally unfair manner in dealing with his appeal.  In the list of grounds filed, he did not give any particulars.  At this hearing, the Court asked him to particularize the unfairness complained of.  He was unable to do so.  He gave contradicting statements that the grounds were not prepared by him and that he drafted the grounds himself.  Apparently, he did not know what the grounds he relied on were.  The only unfairness he could say was that he was asked to go, ie return to Bangladesh.  In the end, he said he did not even know why he was in Court.

17.  Nevertheless, the Court examined the grounds he filed with his application and his affirmation filed in support.  In the statement of grounds and affirmation, he emphasised the fact that he was only given the appeal bundle six days before the hearing before the Board.  He complained that the majority of the documents in the appeal bundle were in English and he “strongly believe that there was insufficient time for him to prepare for the hearing especially due to his limited skills in English and being unrepresented which is quite apparent to the Director of Immigration.”; and given the shortness in time, he could not arrange reasonably cheap interpretation service.  The thrust of the above statement is about lack of language assistance with a slight mention about lack of legal representation and insufficient time for preparation.  The Court treated these three issues as the basis of his complaint about procedural unfairness. 

18.  In Re Zafar Muzzam[5], Re Zunariyah[6], Re Zahid Abbas[7], Re Tariq Farhan[8], and Re Lopchan Subash[9], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[10] nor the judgment of FB v. Director of Immigration[11] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.  The real question is whether the claimant is prejudiced for want of legal and language assistance.

19.  The Applicant had the benefit of legal representation in preparing his NCF, in attending the screening interview and presenting his case to the Director.  He had no complaint about lack of legal assistance up to that stage.  His complaint is that he had no legal assistance thereafter.  However, all the benefits that legal representation could have afforded him are contained in his written submissions, his NCF and his answers in the screening interview given under legal advice.  All these had been presented to the Director, which were then presented to the Board.  He also had the services of a qualified interpreter at the oral hearing before the Board to assist him in presenting his appeal. Despite he was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded him were before the Board.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board.  He suffered no prejudice due to lack of legal representation before the Board.

20.  The Court was sympathetic with his situation and understood his difficulties caused by his limited skills in English.  It was his choice to come to Hong Kong where the official languages are Chinese and English.  In the circumstances, he has to live with or cope with his language disability.  He cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit.  He has to find resources himself from among his friends and the Bangladeshi community.  Indeed, he was able to file a very well written affirmation in English prepared for him, obviously out of his own resources.

21.  More specifically, the appeal bundle is basically made up of his NCF, the record of his screening interview, and the COI.  He knows what is contained in his NCF which was filled in by him with the assistance of an interpreter and the Duty Lawyer Service.  He knows what is contained in the record of screening interview which he attended with the assistance of interpreter and legal representation.  The record had been read back to him and he signed to acknowledge that he understood and agreed with the contents and that no amendment was necessary.  Recognising his language disability in foreign soil and the importance of his claim, he ought to have taken notes, at least very brief ones, to remind him of what he had said or written rather than relying on the host country to provide him the convenience of interpretation at his fingertips.  The COI are, unfortunately, not in Bengali. The COI are information about his own country published by very credible sources.  He ought to know about the information.  If he considered necessary, he should have sought assistance from the interpreter at the oral hearing.

22.  As for his complaint about the shortness in time for preparation, the Notice which he sought to appeal was issued by the Director on 27 June 2017.  The hearing of the Board was held on 7 September 2018.  In between, he had more than one year and two months to prepare his appeal.  It lies ill in his mouth to say that for all these months he did not have sufficient time to prepare for his appeal and put the blame on the late service of the appeal bundle.  Besides, as explained above, the appeal bundle is basically made up of his NCF and the record of his screening interview.  He knows what is contained in these documents.   The COI are, unfortunately, not in Bengali. He cannot expect these documents to be fully translated to him.  He has to find resources himself from among his friends. 

23.  The difficulties and procedural unfairness raised by him are more apparent than real.  If there is any unfairness, it is self-induced.

Ground (3) – Unreasonableness and irrationality

24.  Under Ground (3), the Applicant argued that the Decision of the Board was unreasonable or irrational in the public law sense or was the result of procedural errors or unfairness.  Again, he gave no particulars.  The complaint of procedural errors and unfairness was covered in Ground (2) and rejected by the Court. 

25.  The complaint of unreasonableness and irrationality is obviously directed at the outcome of the Decision.  This is in substance a challenge of the finding of facts of the Board.  The function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[12].  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  The Board’s conclusion that there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds was utterly without fault. There were no errors of law, procedural unfairness, unreasonableness or irrationality in its Decision which could be regarded as procedurally unfair, Wednesbury unreasonable, or irrational.

26.  The Applicant complained about the Board’s reliance on COI which is not officially recognized or is hearsay or outdated and the Decision based on such information is just groundless speculation.  He did not particularize. This argument is misconceived because the finding of the Board is that on the fact the Applicant’s fear and risk were not well-founded.  The Board did not find it necessary to refer to the COI in connection with any finding of police protection and internal relocation.

Ground (4) – Breach of greater duty of care owed to self-represented claimant

27.  Under Ground (4), the Applicant accused the Board of having failed to meet the greater care and duty owed to a self-represented claimant.  Again, he did not particularize the alleged failing of the Board.  In the opinion of the Court, on the face, the Board had fully considered the Applicant’s case; and he suffered no disadvantage for not being legally represented.

Conclusion

28.  The Court therefore concluded that there was nothing that shows there was any error of law or procedural unfairness or irrationality in the Decision of the Board.  The Court found that the Board adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable.  The Applicant’s claim was not reasonable arguable.  There was no realistic prospect of success.  Accordingly, leave to apply for judicial review was refused.

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] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] cacv 2/2018, (unreported) 23 March 2018

[6] [2018] HKCA 14

[7] [2018] HKCA 15

[8] [2018] HKCA 17

[9] [2018] HKCA 37

[10] (2004) 7 HKCFAR 187

[11] HCAL 51 of 2007, (unreported) 5 December 2008

[12] [2018] HKCA 524 at para 14(1)