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

HCAL 2735/2018

[2021] HKCFI 1755

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2735 of 2018

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 November 2018 (the “Decision”).

2.  The Applicant is a Bangladeshi national.  She entered Hong Kong on 23 September 2013 to take up employment as a foreign domestic helper.  Her employment was prematurely terminated and she became an over-stayer since 2 January 2014. She was arrested by the police and referred to the Immigration Department on 15 October 2015.  On 18 October 2015, she applied for a non-refoulement protection.

3.  In due course, her 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 Decision dated 25 May 2018 (the “Notice”), the Director of Immigration (the “Director”) rejected her claims.  Her appeal to the Board against the decision in the Notice was dismissed by the Board’s Decision dated 22 November 2018.    

The Applicant’s case

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

5.  The Applicant is a widow.  Her brother was a supporter of Bangladesh Nationalist Party (“BNP”). He was against drug trafficking in his area which was carried out by members of the Awami League (“AL”), the major opponent of BNP and the ruling party in the Parliament.  He lodged complaints with the Rapid Action Battalion (“RAB”) which annoyed AL.

6.  On 20 May 2008, some AL members called her brother out for a meeting at Kasaituli Tara Mosque.  Her brother arrived there with a friend, Mohammad Ali.  There, the AL members had a fight with her brother and shot him 6 to 7 times.  Her brother was killed. Mohammad Ali was shot in the leg but escaped.

7.  The Applicant being the only close relative of her brother made a complaint of murder against ten defendants.  She was offered cash by the defendants to settle the complaint, but she refused.  She was then threatened with death by telephone calls and letters.  She complained to the police.  The police referred her complaint to the RAB and RAB made two arrests and passed the case to the court.

8.  The Applicant moved from place to place to avoid the threat.  But she felt she was being followed. Eventually, on her friend’s advice, she came to Hong Kong to work as a foreign domestic helper.

The finding of the Board

9.  The Board did not find the Applicant credible.  The centrepiece of her case is the murder of her brother. She produced nine newspaper reports about the murder of a man by the name of MD Sentu (“Sentu”) aged between 30 and 35.  In seven of the nine reports, Sentu was reported to be 35 years old.  In one of the report and the death certificate produced by the Applicant, he was reported to be 30 years. However, the Applicant’s brother was born in 1986 and aged 22 at the time of the alleged murder.  Furthermore, the circumstances of Sentu’s death as reported in the newspapers differ very significantly from those described by the Applicant.  According to the newspaper reports, Sentu was having a cold drink outside the Mosque when terrorists suddenly shot him and fled.  There was no fight between Sentu and his murderers.  There was no mention about his friend Mohammad Ali being involved and shot.  Also, the Applicant could not produce any evidence that Sentu was her brother.  The Board was unable to attach any weight to the reports and death certificate submitted by the Applicant as being reliable or relevant to her claim or being referable to her brother.

10.  The Board was also concerned why the Applicant did not seek non-refoulement protection as soon as she arrived Hong Kong or when her employment was terminated.  Instead, it took her one year and ten months after she became an over-stayer and after she was arrested that she sought non-refoulement protection.  This fact also cast doubts on the genuineness of her claim of fear and risk.  On the Applicant’s own case, she had never been assaulted by any drug dealers or AL members and had never met any harm in Bangladesh.

11.  In conclusion, the Board did not accept the Applicant’s evidence.  It was not satisfied even to the low standard required that the Applicant’s evidence was credible; that she had a brother called Sentu; that she had been threatened by her brother’s killers who were drug dealers and AL members; or that she had otherwise been ill-treated in Bangladesh.  In other words, the Board found that she failed to prove her case of fear and risk.  On the basis of these findings, there is no factual basis to support any claim for non-refoulement protection under any of the applicable grounds under the USM.  The Board found the alleged murderers were not state actors and that state protection available as evidence by the arrests made by the RAB.  The Board also found internal relocation a viable option.

Grounds for judicial review

12.  The Applicant advanced the following four grounds of appeal in her notice of application for leave to apply for judicial review (Form 86):

(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) – Unlawful exercise of discretion

13.  Under this ground, she accused the Board of having unlawfully fettered its discretion by refusing her appeal on the grounds that she 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 her appeal.  The real question is whether the Decision of the Board is reviewable for having committed errors of law, procedural unfairness or irrationality in its Decision.  Having examined all the grounds and rigorously examined the Decision and the papers, the Court was satisfied that the Decision could not be criticized for the above reasons.

Ground (2) – Procedural unfairness

14.  The basis of the Applicant’s complaint about procedural unfairness is that the majority of the documents in the appeal bundle used before the Board were in English and the Applicant did not have sufficient time to prepare for the hearing due to her limited skills in English and she being unrepresented.  She also complained that she was not provided with the appeal bundle and refused an adjournment.

15.  In Re Zafar Muazam[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 Applicant was prejudiced due to lack of legal representation before the Board.

16.  Similarly, a claimant does not have absolute right to free language assistance at all stages of the proceedings.  In Re Karamjit Singh[12], the Court of Appeal adopted the rationale of the Court of First Instance 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 an applicant 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, she has to live with or cope with her language disability.  She cannot expect to have the luxury of any documents to be fully translated into her first language for her benefit.  She has to find assistance herself from among her friends and ethnic community.  Indeed, the Applicant was able to file an adequately well written affirmation in English herself.

17.  The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter at the screening interview and in presenting her case to the Director.  She also had the services of a qualified interpreter at the oral hearing before the Board.  Though the appeal bundle is in English, it is basically made up of her NCF, the record of the screening interview and the decision of the Director in the Notice, including the Country of Origin Information (“COI”).  At this hearing, she admitted that she knew what were in the NCF and the record of the screening interview.  The Notice of the Director was issued to her on 25 May 2018.  It was not until 28 August and 5 November 2018 that the oral hearing was held.  The Notice is in English and, unfortunately, no translation was provided.  She cannot expect these documents to be fully translated for her.   She had in between the issue of the Notice and the oral hearing three to five months to seek assistance from among her own circle.  Indeed, she had access to interpretation services as reflected in her affirmation and Form 86 filed in connection with this application which were very well written in English.  Also, she could have sought assistance from the interpreter at the oral hearing before the Board.  It lies ill in her mouth to attempt to overturn the result of the hearing on this ground. 

18.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation or interpretation in the process before the Board.  Her complaint about lack of legal and language assistance is over-exaggerated.  At the hearing, after all these facts were put to her, she admitted there was no unfairness as a result of the lack of legal and language assistance.

19.  Part of her complaint about procedural unfairness is that the COI relied on by the Board was not officially recognised and made up of hearsay and was outdated, which resulted in the Board making groundless speculation that it was safe for the Applicant to return to Bangladesh.  She quoted three COI, namely USHR 2010, USRF 2010 and the Report on the International Commission of Jurists Mission to Bangladesh and argued that had these COI been considered by the Adjudicator, it would have been sufficient to support a finding of a consistent pattern of human rights abuses in Bangladesh and there is a lack of state protection.  The Court was unable to identify the first two COI and the relevance of the third.  The Applicant was also unable to produce the COI for the Court’s consideration.

20.  The COI relied on by the Director and the Board are all from credible and official sources, including Country Reports on Human Rights Practices for 2017: Bangladesh published by the United States Department of State; The World Factbook, published by United States Central Intelligence Agency; Country Information and Guidance on Bangladesh: Background information, including actors of protection, and internal relocation issued in November 2014 and Country of Origin Information (COI) Report on Bangladesh dated 31 August 2013published by the United Kingdom Government; and other news reports and articles.  Other than a bald assertion of unreliability and hearsay, the Applicant provided no particulars as to what are untrue, not to mention her failure to provide any publication contradicting these COI. 

21.  The Applicant complained about the weighting put on the COI and that the Board was cherry-picking.  This is basically a finding of fact which is solely within the province of the Board as the tribunal of fact.  In any event, in view of its finding that the Applicant does not face a real chance of harm of any kind for any of the reasons claimed, the Board’s finding on availability of state protection and internal relocation was unnecessary for its decision. 

22.  The Applicant also made a very serious allegation of impropriety against the Board in that no hearing bundle had been provided to her before the scheduled hearing date and that the Board refused her request for rescheduling the hearing.  These allegations are contradicted by the Board’s Decision.  In paragraph 9 of the Decision, the Board set out a list of documents submitted by the Applicant, including her NCF, record of screening interview and ten documents in Bengali which had been translated into English for the Board’s use.  These documents included the news reports and death certificate referred to in the Decision.

23.  Her allegation is also contradicted by paragraph 61 of the Decision in which the Board noted that “the Applicant confirmed that her evidence as contained in the hearing bundle was true and correct”.  The Board also noted that she “adopted the evidence in the hearing bundle as her evidence for the appeal” and that “save for the answer to question 45 in the NCF, she also confirmed her background to be correct.”  Then the Board went on to deal with question 45.  In that question, the Applicant was asked whether any member of her family had been killed or harmed in Bangladesh and she answered “no”.  That was contrary to her case that her brother was murdered. The Decision therefore shows that she actively participated in dialogue with the Board about matters contained in the appeal bundle.  She corrected her mistake in the appeal bundle.  If she had not been provided with the appeal bundle, how could these have happened?

24.  At one stage during this hearing, the Applicant said that the Board asked her questions such as whether a signature was hers and whether what was said in the documents was correct.  What she told the Court precisely reflected the care taken by the Board in confirming with her about the correctness and truthfulness of her NCF and the record of screening interview, etc. 

25.  Obviously, the Applicant had the appeal bundle. Besides, the appeal bundle contains nothing other than documents provided by her and the Notice by the Director which was given to her three months before the hearing.  In other words, she had all the documents.  The appeal bundle is only for the Board’s use and her convenience.  Even if the bundle had not been provided to her, she could not complain about procedural unfairness for it was her appeal and her burden to prove her claim with her documents.  She has all the documents.  All the indications are that her complaints are false and they are just irresponsible and even mala fide accusations made for the purpose of achieving her own ends in seeking leave to apply for judicial review.

26.  The Court considered the complaint about procedural unfairness is absolutely groundless.

Ground (3) – unreasonableness and irrationality

27.  As for the overall or general complaint about irrationality and unreasonableness in the Board’s findings, these grounds of complaint are against the findings of facts by the Board.  The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[13].

28.  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 observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks. These are findings of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality.  There were no such elements in the Decision.  The Decision was utterly without fault. 

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

29.  The Applicant did not particularize the duty and the breach.  In the light of the conclusion reached in respect of the other three grounds, the Court was unable to find there was any breach of the greater duty of care owed to the unrepresented Applicant.

Conclusion

30.  For the above reasons, the Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.  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] CACV 78/2018; [2018] HKCA 460

[13] [2018] HKCA 524 at para 14(1)