MD AMIR HOSSEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2444/2019

[2025] HKCFI 2261

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2444 of 2019

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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 23 August 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 30 July 2019 (the “Decision”) dismissing his appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision dated 20 October 2014 (the “1^st Notice”) and Notice of Further Decision dated 28 April 2017 (the “2^nd Notice”), refusing his claim for non-refoulement protection.

Background

2.  The Applicant is a Bangladeshi national.  He sneaked into Hong Kong on 12 August 2013, and was arrested by the police on 15 August 2013.  He made a non-refoulement claim on 18 August 2013.  In due course, his non-refoulement claim was assessed on all three applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[1]; BOR 3 Risk^[2]; and Persecution Risk^[3]. His application was rejected by the Director’s 1^st Notice.  On 13 April 2017, he was invited by an immigration officer to submit additional facts, if any, which he considered relevant to his non-refoulement claim on all applicable grounds including that under BOR 2 Risk^[4] ground within 14 days of the invitation.  He did not respond.  His claim was assessed and rejected by the Director’s 2^nd Notice.  His appeal against the decisions in the 1^st and 2^nd Notices was dismissed by the Board’s Decision.  He now applied for leave to apply for judicial review of that Decision.

The Applicant’s case

3.  The following account of the Applicant’s case is mainly based on the information in the torture claim form and the supplementary claim form prepared by him with legal assistance and the record of his screening interview (the “ROI”) in the presence of his lawyer.  In gist, he claims, if returned to Bangladesh, he will be harmed or killed by Taher, a member of the Awami League (“AL”), and his people, for refusing to quit the Islami Chhatra Shibir (“ICS”), the student wing of Jamaat-e-Islami (“JEI”), and join the AL.    

4.  The Applicant, now aged 35, was born in Lahar Kandi area, Lakshmipur, Bangladesh.  He is single.  His parents and six siblings are living in Bangladesh.  He received formal education for 13 years and never had paid employment.

5.  He claimed that he joined ICS in around 2005 and became the campaign secretary in 2007.  Since about 2007, Taher and his people had been persuading him to quit ICS and join the AL, but he refused.  

6.  One evening in late 2011, while he was on his way to Lakshmipur market, he was approached by Junior Bhai (“JB”) who invited him to go to the stadium to meet Anowar Bhai (“AB”).  Both JB and AB held executive positions in the AL and were Taher’s subordinates.  In the stadium, he saw JB, AB and two other men unknown to him.  After greeting, he was forcibly taken to a toilet.  Only he and AB were inside the toilet, the others were on guard outside.  AB asked him to quit ICS and join AL.  He refused.  AB became angry.  He first slapped his face, kicked and punched him, then attacked him with a bamboo rod.  The assault lasted for at least 20 minutes.  After that, AB locked him inside the toilet and ordered JB to stay behind to guard him while JB and the others went for dinner.  He begged JB for help.  JB told him to use the iron rod inside the toilet to break the lock of the door when he went out for meal.  Thus, he managed to escape.  His brother picked him up and took him to a private hospital in the Lakshmipur City for treatment.  The day after his discharge from hospital, he went to file a complaint with the Lakshmipur Sadar police station, but the police kept him waiting for hours.  He thought the police acting under the influence of AL would not help him.  So he left.

7.  Since his family told him that AB and his people were looking for him whilst he was in hospital, he went to stay at his aunt’s and his cousin’s homes in the Peyarapur area for six to seven months for his own safety.  Whilst there, he learnt from his brother that AB had threatened to kill him.

8.  One day, his cousin, who was an AL member, informed him that AB and his people had found out his whereabouts and suggested him to leave.  He therefore went to stay with another cousin in Dhaka for a year.  In around May 2013, his father told him that he was being framed for an arson case and the police was looking for him.  He then took his father’s advice to leave Bangladesh to avoid the troubles.

9.  Whilst in Hong Kong, he learnt from his family that AB and his people as well as the police were still looking for him.  He also learnt from online news that AL members would abduct and kill JEI members.

10.  The Applicant claims that state protection is not available because the police sided with the ruling party.  He does not believe internal relocation viable, as the AL people could locate him throughout the country through their powerful network.

The finding of the Board

11.  The essence of the Applicant’s claim is his fear of being killed or harmed at the hands of various supporters of the AL in his home town because of his refusal to change his political allegiance to the AL from the JEIP.  He cited some unparicularised occasions from 2007 to 2011 to support his fear. The only instance of violence was the detention and assault in the stadium toilet, which he said were done under the direction of Taher who was a local mayor and holder of some unknown position in the AL.  The Applicant’s claims as to Taher’s involvement with the threats and the false arson case arose from hearsay, and sometimes second or third hand hearsay evidence.  The makers of the threats, for the most part went unnamed and the occasions lack particularity.  The Board also consider the stadium toilet incident had an air of implausibility. 

12.  The Board found Applicant had failed to establish, even to the low standard required, that he had political or other importance such that the AL members would rally against him in violence in the manner and on the continuing basis he alleged to fear, and that those AL members would still have interest in pursuing him after that one act of direct violence to him that occurred eight years ago.

13.  On the basis of objective country of origin information (“COI”), the Board accepted that though there are failures and corruption in the police in Bangladesh, there are objective indications that the Bangladeshi government has taken practical steps to maintain public order and safety in its jurisdiction and to enhance the effectiveness of the police.  It therefore considered reasonable state protection will be readily available to the Applicant in Bangladesh.  It rejected the Applicant’s claim that the police in Lakshmipur Sadar police station delayed processing his complaint as a result of Taher’s influence speculative.  Furthermore, as an able-bodied person, the Board found he could relocate to different parts of Bangladesh to avoid the perceived risks of harm, which are localised in his home area.

14.  The Board found the Applicant an incredible witness.  It found his evidence wholly unreliable with glaring contradictions and implausibilities amongst his testimony before the Board and the documentation which comprised his overall account.  It rejected almost the entirety of his evidence.  In the circumstances, the Board found that there could not possibly be any substantial grounds for finding that he would face any real risk of ill-treatment if refouled to Bangladesh.  Hence, it dismissed his appeal against the Director’s Notices.

Legal principles applicable to judicial review

15.  The role of the court in judicial review is not to re-assess the non-refoulement claims 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 scrutinize 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[5].

Grounds for judicial review

16.  At the hearing, after the legal principles in the preceding section had been explained to him, he confirmed that he had no complaint about error of law, procedural unfairness or irrationality.  However, in his supporting affidavit, apart from repeating his USM case, he made the following complaints, which can be perceived as grounds of review:

(1)  The Board did not truly investigate his problems;

(2)  He was not given a lawyer in his oral hearing before the Board; and

(3)  He does not know English but the Immigration Department gave him a bundle in English;

Ground (1) - The Board’s failure to truly investigate his problems

17.  The essence of the Applicant’s complaint is that he disagreed with the finding of the Board that it is safe for him to return to his home country.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Bangladesh.  Finding of fact is a matter solely within the realm of the Board, which the court in a judicial review will not interfere, save for errors of law, procedural unfairness and irrationality in the Decision.  The Court will leave this issue to be determined in its overall scrutiny of the Board’s Decision.

Ground (2) – Lack of legal representation before the Board

18.  The high standard of fairness requires that a claimant for non-refoulement protection must be provided with adequate legal assistance. But that high standard does not require that he be provided with legal assistance throughout the entire non-refoulement procedures.  It was held by the Court of Appeal in Re Zafar Muazam[6], Re Zunariyah[7], Re Zahid Abbas[8], Re Tariq Farhan[9], and Re Lopchan Subash[10], that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar[11] nor in the judgment of FB v. Director of Immigration[12] 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 extent of assistance depends on the individual circumstances, such as complexity of the case in terms of fact or the law; and whether minor claimants are involved.  Usually, the high standard is attained if the claimant is provided with legal assistance at the initial stage which is the most important stage of the non-refoulement process.  It includes an initial consultation in which the law relating to non-refoulement protection is explained to the claimant and instructions are taken from him as to the facts of his case, assistance in the completion of the non-refouleement claim form and legal representation at the screening interview.  During the screening interview, the claimant participates in the joint endeavour with the immigration officer in establishing his claim for protection and his legal representative presents his claim to the immigration officer and makes submissions on the law and the fact on his behalf.  Thereafter, legal representation in the appellate proceedings are of less importance for this purpose because all benefits that legal assistance and legal representation could have afforded the claimant are contained in the written submissions, the NCF and answers in the screening interview given under legal advice.  Unless the legal representative advises appeal, the legal assistance stops.  In view of the limited resources available, legal assistance could only be provided with reasonable proportionality.  Public funds could not provide legal assistance for subsequent appellate proceedings which the claimant’s own legal representative does not recommend.  The high standard of fairness is deem attained under such circumstances.  If the claimant wishes to proceed further, he may do so on his own.  All the benefits that legal representation could have afforded him are contained in the hearing bundle before the Board.  His interests are taken care of by an independent board, the law and the high standard of fairness.  He would not be prejudiced due to lack of legal representation.

Ground (3) – The lack of language assistance

19.  As a matter of law, a claimant is not entitled as of right to language assistance at any time whenever he wants it.  In Karamjit Singh[13], the Court of Appeal held that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time a claimant desired or required. It must be borne in mind that it was the Applicant’s 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 native language for his benefit as and when he requires.  He has to use his own resources or find assistance himself from among his friends and his ethnic community. The Bangladeshi community is a relatively large non-local community in Hong Kong. Indeed, the Applicant was able to file his supporting affidavit which is adequately well written in English.  His language difficulty is exaggerated and unreal.

20.  Furthermore, the hearing bundle is basically made up of his TCF and SCF, the ROI, the Director’s Notices, his notice of appeal and the COI. The Applicant knows what is contained in his TCF and SCF, which were 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 an interpreter and legal representation.  The record had been read back to him in his own language, and he signed to acknowledge that he understood and agreed with its contents and that no amendment was necessary.  He knows what is written in his notice of appeal prepared by himself.  Recognizing the limitation in his foreign language ability and the importance of his claim, he ought to have taken notes, at least very brief ones, whenever appropriate to remind him of what he had said or written rather than relying on the host country to provide him with the convenience of interpretation at his fingertips.  The Notices and COI are in English and unfortunately have not been translated.  The Duty Lawyer Service had most probably discussed the contents of the Notices and COI with him when representing him before the Director.  As mentioned above, he should not do nothing and expect the host country would translate the documents to him as and when he requires.  He has to rely on his own means and resources or find assistance himself from among his friends and his ethnic community.

Overall scrutiny

21.  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; the burden of proof and standard of proof and quoted relevant precedents in support of its decision.  The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice.  It correctly identified the factual and legal issues involved in the claim.  The Applicant’s claim is founded on the threat of harm by supporters of the AL for his refusal to quit the JEIP to join the AL.  The Decision of the Board was based on its finding of the Applicant’s credibility and assessment of his risk of harm.  The Board had carefully weighed the evidence and assessed his credibility.  Because of the glaring contradictions and implausibilities amongst the testimony before the Board and the documentation which comprised his overall account, the Board found him an incredible witness and his evidence unreliable.  It rejected almost the entirety of his evidence. It found he had failed to prove, even to the low standard of proof required, the threats and the factual basis of his claim.  As the Applicant bears the burden of proving his claim, such a finding is fatal.  These are finding of fact solely within the realm of the Board, which the court in an application for judicial review will not interfere, save for errors of law, procedural unfairness or irrationality in the Decision.  The Court could detect no errors of law or procedural unfairness in the Decision.  The Board observed a very high standard of fairness.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

22.  For the above reasons, the leave application is 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 23 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] [2018] HKCA 524 at [14(1)]

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

[7] [2018] HKCA 14

[8] [2018] HKCA 15

[9] [2018] HKCA 17

[10] [2018] HKCA 37

[11] (2004) 7 HKCFAR 187

[12] HCAL 51 of 2007

[13] CACV 78/2018