HASAN MD RAKIBUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2752/2019

[2025] HKCFI 3987

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2752 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 19 September 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 13 September 2019 (the “Decision”), dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 19 September 2018 refusing his application for non-refoulement protection. 

2.  The Applicant is a Bangladeshi national.  His personal background, the factual background leading to the present application, the basis of his claim and the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below [1] for reference.  In gist, he claims that if returned to Bangladesh, he will be harmed or even killed by leaders of the Awami League (the “AL”) because of his support for the opposition Bangladesh Nationalist Party.

Grounds for judicial review

3.  At the hearing, after the legal principles applicable to judicial review were explained to him, the Applicant confirmed he had no complaint about errors of law, procedural unfairness and irrationality in the Decision.  However, in his Form 86, he advanced in paragraph 8 of an annexed document titled “Grounds On Which Relief Is Sought” the following four grounds of application:

(1)  the Board unlawfully fettered its discretion by refusing his appeal on the grounds that he did not meet the requirements;

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

(3)  the Decision was unreasonable or irrational in the public law sense or is a result of procedural error or unfairness; and

(4)  the Board failed to meet the greater care and duty owed to him as an unrepresented claimant.

Furthermore, in his supporting affirmation, he made the following complaints in paragraphs 5 to 15 under the heading “Factual Background and Chronology” which may be regarded as grounds of application:

(5)  he was not legally represented in his appeal before the Board;

(6)  the appeal bundle before the Board and the Director’s skeleton argument were given to him just a few days before the hearing and due to lack of understanding on what will happen in the hearing he was confused;

(7)  the majority of the documents in the bundle were in English and he was not provided language assistance;

(8)  the Board ignored his request to notify him of the Decision by phone;

(9)  the Board relied on source of news which is not officially recognized or is hearsay;

(10)  the Decision relating to his BOR 2 Risk claim was made without a screening interview;

(11)  there are many more unacceptable and unexplainable grounds; and

(12)  the Decision was reached wrongly without any proper inquiry and careful understanding of his situation.

There are other frivolous grounds raised in these two documents which are in essence challenges against the Board’s finding of fact, which are impermissible in a judicial review.  Those grounds would not be considered here.

Ground (1)

4.  The Applicant was unable to advance any argument in support of Ground (1).  Having scrutinised the Decision, the Court is satisfied that the Board had made finding of facts in support of its finding that the Applicant is not entitled to protection under any of the applicable grounds under the Unified Screening Mechanism (the “USM”): see paragraphs 13 and 14 below.  There is nothing to support the Applicant’s claim that the Board had fettered its discretion to dismiss his appeal.

Grounds (2) to (4), (9), (11) and (12)

5.  Initially, the Applicant said that these grounds were prepared by someone on his behalf based on the information he provided. However, when he was asked to provide particulars of Grounds (2) to (4), (9), (11) and (12), he said he could not explain those grounds because they were not written by him.  These grounds could not be considered for want of particulars.

Ground (5)

6.  The Applicant complained that he was not legally represented at the appeal hearing.  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 all non-refoulement procedings.  It was held by the Court of Appeal in Re Zafar Muazam[2], Re Zunariyah[3], Re Zahid Abbas[4], Re Tariq Farhan[5], and Re Lopchan Subash[6], that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar[7] nor in the judgment of FB v. Director of Immigration[8] 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 during 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. 

7.  The Applicant remembered that he was assisted by an interpreter, but could not remember if he had legal representation.  There is no evidence to suggest the standard practice of providing claimants with legal representation by the Duty Lawyer Service (“DLS”) in the preparation of his non-refoulement claim form (the “NCF”) and during the screening interview had not been followed in his case. The fact that the Notice was sent to him care of the DLS strongly suggests that he had been legally represented by the DLS. As he had legal representation at the initial important stage of the non-refoulement process, there is no substance in this ground. 

Ground (6)

8.  The Applicant said he was only given the hearing bundle for the appeal about seven to ten days before the appeal hearing.  Excluding the intervening weekend, he only had five to eight days to prepare for the appeal. On the face, he had little time to prepare for the appeal.  However, he was unemployed and had nothing else to do.  He should not indulge himself for the weekend and forget about his appeal as if he were a tourist visiting Hong Kong.  Furthermore, the hearing bundle is basically made up of his NCF, the record of his screening interview, and the Director’s Notice of Decision with the country of origin information.  The Applicant knows what is contained in his NCF which was filled in by him with 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.  Besides, time did not start to run from the day of receipt of the hearing bundle, but from the date of receipt of the Notice which he sought to appeal, if he was serious about the appeal.  The Notice was issued on 19 September 2018.  The appeal hearing was held on 19 July 2019.  In between, he had fourteen months to find out what the appeal bundle is about.  In any event, if he need more time for preparation, he could have raised that with the Board at the hearing.  There is no substance in this ground.

Ground (7)

9.  The Applicant said that the hearing bundle is in English which he is not familiar with and he could not afford private interpretation service.  In Karamjit Singh[9], 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 having any documents to be fully 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.  There is a recognizable Bangladeshi community in Hong Kong.  Indeed, he was able to file an adequately well written affirmation and grounds of application in English.

10.  Furthermore, 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, 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. 

Ground (8)

11.  As for his complaint that the Board ignored his request to notify him of the outcome of the Decision by phone, it is difficult to see how and why the Board’s refusal to provide him with that convenience could support a complaint of error of law, procedural unfairness or irrationality in the Decision.  The Decision having been made, whether the Board explains it to the claimant could not have changed the Decision.

Ground (10)

12.  From the Director’s Notice, it is amply clear that the immigration officer conducted one screening interview in which he explored the Applicant’s grounds of claim with him under all applicable grounds under the USM.  There is no particular reason why the immigration officer should hold a separate interview with him in respect of BOR 2 Risk ground.

Overall scrutiny

13.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is 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 a very high standard of fairness.  

14.  The Board accepted the Applicant’s evidence.  The Applicant could not have any reason to complain about the Board’s finding of these primary facts on which his claim is based.  It then assessed his claim on the basis of those primary facts.  It found his problem arose from a purely personal grudge and jealousy held by the AL leaders in his locality because of his efforts in helping the BNP candidate in the election.  He was not the person who expressed the political opinion to attack people to join their party or to defy the opposition party.  On the basis of credible country of origin information, the Board found adequate state protection is available to protect the Applicant from the alleged harm.  As the injuries he suffered at the hands of the AL leaders were not serious, the Board found the AL leaders had no intention to kill him and he would face no genuine and substantial risk of being subjected to ill-treatment, if refouled to Bangladesh.  Applying the law applicable to non-refoulement protection to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM.  These are mixed finding of law and of facts.  Insofar as these are finding of the law, they are absolutely correct.  Insofar as these are finding of fact, they 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 and irrationality.  The Court could detect no error of law or procedural unfairness in the Decision.  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 proposed judicial review has no realistic prospect of success.

Conclusion

15.  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

[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL002752_2019_files/the_Board's_Decision.pdf 

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

[3] [2018] HKCA 14

[4] [2018] HKCA 15

[5] [2018] HKCA 17

[6] [2018] HKCA 37

[7] (2004) 7 HKCFAR 187

[8] HCAL 51 of 2007

[9] CACV 78/2018