MIA MD MOHID v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 301/2019

[2022] HKCFI 313

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 301 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 (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 14 January 2019 (the “Decision”). 

2.  The Applicant entered Hong Kong on 25 October 2011 and was permitted to stay as a visitor until 1 November 2011.  He was arrested by the police on 23 February 2015 for overstaying and referred to the Immigration Department.  On 5 March 2015, he applied for non-refoulement protection.

3.  In due course, his non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By a Notice of Decision dated 15 February 2018, the Director of Immigration (the “Director”) rejected his claims.  His appeal to the Board against the decision in the Notice was dismissed by the Board’s Decision dated 14 January 2019.  He now seeks leave to apply for judicial review of the Decision of the Board.    

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 which was prepared by him with assistance of the Duty Lawyer Service. 

5.  The Applicant is a national of Bangladesh, now aged 39, married with two children.  He is a Sunni Muslim.  His father is the President of the Jamaat-e-Islami political party (“JeI”) in Ariai Union.  He joined JeI in 2006 and became its General-Secretary in Ariai Union in late 2006.

6.  Since Awami League political party (“AL”) came to power in 2009, it began to get rid of Jel.  Many JeI supporters were arrested and killed in crossfire.  In mid-February 2010, about 10 to 15 members of Jubo League (“JB”) which is the student wing of AL vandalised his home and assaulted him and his brother with hockey sticks.  The Applicant was hit in the leg by a cutter thrown at him.  He escaped to Dhaka.

7.  While he was in Dhaka, his mother told him that about 8 to 10 members of JL came and vandalised their home, beat his father with fists and sticks, and told his father to bring him back home.  In about mid-2010, his mother told him that JL members had come to their home and demanded his father to disclose his whereabouts or give them 10 Lakhs.  When his father refused, they set fire to the house.   His father suffered a heart attack.

8.  In June or July 2010, he moved to Chittagong.  His father told him that the JL people were still looking for him.  About two to three later, his landlord told him that the police were looking for him. 

9.  The Applicant returned to Dhaka in about September 2010 and obtained his passport in October 2010.  In about June or July 2011, his neighbours told him that the local AL had been looking for him.  He decided to come to Hong Kong to get refuge.  He was told by an agent that it would be easier for him to get a visa if he had travelled to other countries.  So he travelled to India and then Nepal.  In October 2011, he flew to Hong Kong.

10.  About three or four days after he arrived in Hong Kong, his mother told him that there was a big fight between SL and JeI members over a piece of land.  As result, his father was arrested, but released after two days.  His father had a heart attack in 2015 and passed away.

11.  The Applicant said that the police are killing leaders of JeI.  He is afraid he will be detained and tortured if he returned to Bangladesh.  He said his enemies and the police were looking for him because of his involvement with JeI.

The finding of the Board

12.  The Board accepted the Applicant’s evidence about his personal background.  It gave him the benefit of the doubt and accepted the key aspects of his claims about past events in Bangladesh, including that his father held a senior position with JeI in his local union and that the Applicant followed his father into JeI and was a member and supporter of the party for a number of years before his departure in October 2011.  The Board also accepted the Applicant held the position of Secretary General of JeI in his local union but with some doubts as to the level of his participation in JeI due to the vagueness of his evidence.  The Board accepted the Applicant’s account about the assault and vandalism in his home in February 2010, but considered that the main target was his father because of his position as president of JeI at the local union level and that the Applicant was a collateral target by virtue of his presence in the family home and his status as his father’s son and position in JeI.  It also accepted the Applicant’s account of having lived in Dhaka and Chittagong for approximately 20 months before he departed Bangladesh for Hong Kong in 2011. Thus, the Board accepted the key aspects of his case.  However, applying the law applicable to non-refoulement protection under the four applicable grounds under the USM, the Board found he was not entitled to protection.  The main reasons are as follow.

13.  The Board considered that the AL or JL members who inflicted or would inflict harm on the Applicant were or would be private individuals and not agents of the state or public officials and were not, and would not be acting in an official capacity in the context of the circumstances in which the Applicant claimed to be at risk of being subjected to harm.  The Board did not consider there are substantial grounds to believe that the police in Bangladesh or the state of Bangladesh more generally would deliberately withhold protection from him in regard to JL and AL members and supporters in his home area who previously subjected him and his family to harm in the claimed circumstances.  For these reasons, the Board found that the harm the applicant feared from JL and AL members and supporters in his home area who previously subjected him and his family to harm does not come within the definition of torture in section 37U(1) of the Immigration Ordinance as to entitle him to protection under the Torture Risk ground.

14.  The Board accepted that the type of harm the Applicant fears would be likely to cause him severe pain and suffering that would come within the meaning of degrading treatment for the purpose of BOR 3 Risk.  The Board also accepted there is a small though nonetheless real risk that the Applicant would suffer mistreatment that would constitute cruel, inhuman, degrading treatment or punishment. However, it considered that the risk could be prevented or reduced by state protection and avoided by internal relocation to other parts of Bangladesh and it would be reasonable for the Applicant to so relocate.

15.  The Board considered that though there is a real chance or a real risk that the Applicant would suffer serious harm as a result of persecution by members and supporters of AL and JL in his home area.  However, for the same reasons, the Board considered that the risk could be avoid by internal relocation and it would be reasonable for the Applicant to so relocate.

16.  As for BOR 2 Risk ground, the Board did not accept there are substantial grounds to believe that the Applicant would face a real risk of being subjected to the death penalty or being arbitrarily deprived of his life in any of the claimed circumstances or situations or for any other reason.  The Board also found no evidence or information which indicate or suggest that the humanitarian conditions in Bangladesh are so dire to render refoulement a violation of the Applicant’s right to life.

The applicable legal principles          

17.  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

18.  The Applicant advanced the following four grounds of appeal in his 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.

19.  Though not listed as a ground, the Applicant mentioned in the Form 86 under “Background of the Applicant” that “he was not given an opportunity to keep forward his submissions in an oral hearing nor he was invited to submit written submissions”[6]. He also complained that the Board has significantly relied on news which is not officially recognized or is hearsay, and cases which are out-dated, resulting in the Board making groundless speculations that it is safe for him to return to Bangladesh[7]. The Court understood that by “news” and “cases” the Applicant meant COI mentioned by the Board in the Decision.  The Court treated his first complaint as his elaboration of his second ground, ie procedural unfairness; and his second complaint as his fifth ground, ie erroneous reliance on COI.

20.  There are two main thrusts in the Applicant’s supporting affirmation filed on the same day. First, he complained about lack of language assistance and legal representation[8].  Second, he complained about procedural unfairness in that the hearing bundle which was in English was only given to him six days before the hearing with an intervening weekend of two days[9]. He also repeated the Board’s erroneous reliance on COI mentioned in the above paragraph.  The Board treated his complaint about lack of language assistance and legal assistance as the sixth ground and his complaint about late delivery of the hearing bundle as elaboration on his second ground, ie procedural unfairness.

21.  Thus, altogether the Applicant has advanced six grounds for his application for leave to apply for judicial review.  It would be convenient to consider the sixth ground first followed by the second ground and then the other grounds in numerical order.

22.  At the hearing, the Applicant said that the application and the affirmation were prepared by him. He said his spoken English was not good but he could write and read English. He confirmed he understood the content of the application and affirmation.  He accepted that he understood the documents contained in the hearing bundle before the Board, namely his NCF, record of interview and COI, though they were not written in his first language. 

Ground (6) - Lack of language assistance and legal assistance

23.  In Re Zafar Muazam[10], Re Zunariyah[11], Re Zahid Abbas[12], Re Tariq Farhan[13], and Re Lopchan Subash[14], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v. Sakthevel Prabakar[15] nor the judgment of FB v. Director of Immigration[16] prescribes that a CAT claimant or 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. 

24.  Likewise, a claimant does not have absolute right to free language assistance at all stages of the proceedings.  In Karamjit Singh[17], the Court of Appeal agreed with 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, 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.

25.  Though the appeal bundle is in English, it is basically made up of his NCF, the record of the screening interview and the decision of the Director in the Notice, including the COI.  At this hearing, the Applicant admitted he understood the documents in the hearing bundle.  The Notice of the Director was issued to him on 15 February 2018.  It was not until 11 September 2018 and then 5 November 2018 that the oral hearing was held.  The Notice is in English and, unfortunately, no translation was provided.  He cannot expect these documents to be fully translated for him.   He had in between the issue of the Notice and the first oral hearing seven months and in between the issue of the Notice and the second hearing nine months to read and understand the documents and to seek assistance from among his own circle, if necessary.  He also had the services of an interpreter at the oral hearing before the Board.  As he admitted he had no problem understanding the documents in the hearing bundle, it lies very ill in his mouth to attempt to overturn the result of the hearing based on lack of language assistance. 

26.  The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter in preparing his NCF and at the screening interview and in presenting his case to the Director.  He therefore had the benefit of legal representation in presenting his case to the Director.  All the benefits that legal representation could have afforded them were contained in his written submissions, NCF and answers in the screening interview given under legal advice.  All these had been presented to the Director, which were then presented to the Board.  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.  The Applicant suffered no prejudice due to lack of legal representation before the Board.

27.  There is no substance in his complaint about lack of legal and language assistance.

Ground (2) – Procedural unfairness

28.  The Applicant was unable to give particulars of his complaint about procedural unfairness.  He said he felt bad after losing his case and was not thinking straight.  Doing the best it can, the Court identified two possible basis of his complaint.

29.  First, he complained in paragraph 6 of Form 86 that “he was not given an opportunity to keep forward his submissions in an oral hearing nor he was invited to submit written submissions.”   This is not true.  As the Decision shows, he testified and answered the Board’s questions.  When these facts were put to him, he admitted he had opportunity to address the Board and withdrew this complaint.

30.  Second, as mentioned in paragraphs 4 and 8 of “Factual Background” in his supporting affirmation, the majority of the documents in the appeal bundle used before the Board were in English, but were only given to the Applicant six days before the hearing including an intervening weekend of two days.  He did not have the funds to engage the services of an interpreter or sufficient time to prepare for the hearing due to his limited skills in English and the fact that he was unrepresented.  His complaint about lack of language assistance has been disposed of in the above section.

31.  As for his complaint about the shortness in time between the service of the hearing bundle on him and the oral hearing before the Board, it must be noted that the single most important document in the hearing bundle is the Notice of Decision which contains the reasons why the Director refused his non-refoulement claims.  He had been served that Notice seven months before the first hearing.  He had another two months between the first and second hearing to read the Notice.  As for the other documents, except for the COI, the information therein was provided by him, although reduced into English.  He was familiar with the information.  As he had admitted, he had no problem understanding the documents.  Viewed in that context, six days was short, but not inadequate as to amount to procedural unfairness.  He had nine months to read and understand the Notice.  He should have exercised due diligence in preparing for his appeal before the Board than to indulge in the leisure of the weekend and then complain about lack of time and procedural unfairness.  If he need more time to prepare for the appeal, he could have raised that with the Board, but he did not.

32.  The Court was unable to identify any other basis to support a complaint of procedural unfairness.  There is no substance in this ground.

Ground (1) – Unlawful exercise of discretion

33.  Under this ground, 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 could not be a valid ground for application for leave.  If the Applicant did not satisfy the requirements for non-refoulement protection, the Board has no discretion to exercise but to uphold the decision of the Director in the two notices and dismiss his 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.  When asked to particularise the unlawfulness complained of, he said it meant the Board’s refusal to accept his evidence.  As summarised above, the Board actually gave him the benefit of the doubt and accepted the key aspects of his case.  His real complaint is the Board’s conclusion that he is not entitled to non-refoulement protection.  That conclusion was reached by applying the applicable law relating to non-refoulement protection under the USM to the facts found.   Finding of fact is a matter exclusively within the province of the Board.  The Court was unable to find any error of law committed by the Board in reaching its conclusion.  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 (3) – unreasonableness and irrationality

34.  The Applicant said that the basis of his allegation under this ground is that the Decision did not meet his expectation. His complaint could only be treated as an overall or general complaint about irrationality and unreasonableness in the Board’s finding.  This ground is therefore a complaint against the finding of fact by the Board.  As mentioned above, 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.  In an application for judicial review, the Court will only scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality.  

35.  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.  The Board accepted the key aspects of the Applicant’s factual case. It then reached its conclusion by applying the law to the facts found.  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 his burden of proving his fears and risks. These are finding 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 vitiating elements in the Decision.  The Decision was utterly without fault.

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

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

Erroneous reliance on COI

37.  The Applicant complained that by reason of its reliance on outdated COI which is not officially recognized or is hearsay, the Board made groundless speculations that it is safe for him to return to Bangladesh.  The Board’s Decision is its assessment of the risk of harm based on the Applicant’s case.  It did not even find it necessary to consider state protection or internal relocation in respect of which reference to COI is usually necessary. The Board only referred to COI in paragraph 104 of its Decision in its obiter finding that there was no gross pattern of gross, flagrant or mass violations of human rights in Bangladesh that would indicate that there are substantial grounds to believe that there is a real risk that the Applicant would be in danger of being subjected to torture.  That finding was not necessary for its Decision.  Thus, there is no basis for this complaint. 

38.  Furthermore, the COI relied on by the Director and the Board are all from official, authoritative and credible sources, including Country Report on Human Rights Practices for 2016: Bangladesh published by the United States Department of State; The World Fact Book, published by United States Central Intelligence Agency; Transparency International, Corruption Perception Index 2015; State of Human Rights in Bangladesh 2013 published by Asian Human Rights Commission; and other news reports and articles.  The information is contemporaneous and not outdated. Having regard to the nature of the information, it must contain an element of hearsay.  The people responsible for compiling and publishing the information are usually people acting under a duty owed to public authoritative bodies to provide reliable information.  The information is credible.  Furthermore, the Board had carefully considered the information.  As for the weight to be given to the COI, it is a matter for the Board having regard to the nature of information, the circumstances the information was obtained etc.  It is a finding of fact solely within the province of the Board.

39.  Other than a bald assertion of unreliability, outdated information and hearsay, the Applicant provided no particulars, not even any hint, as to what are untrue, not to mention his failure to provide any publication contradicting these COI.  The Court considered the complaint about procedural unfairness is absolutely groundless.

Conclusion

40.  Having rigorously scrutinized the Board’s decision and the papers, the Court was satisfied that there was no error of law in the Decision of the Board, that the Decision was not Wednesbury unreasonable and that the Board adhered to a high standard of fairness.  There was utterly no fault in the Board’s Decision.  For the reasons given in the above sections, the Court found the Applicant’s grounds of the intended judicial review 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] [2018] HKCA 524 at para 14(1)

[6] Paragraph 6 of Form 86

[7] Paragraph 7 of Form 86

[8] Paragraph 5 of “Factual Background” in his supporting affirmation

[9] Paragraphs 4 and 8 of “Factual Background” in his supporting affirmation

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

[11] [2018] HKCA 14

[12] [2018] HKCA 15

[13] [2018] HKCA 17

[14] [2018] HKCA 37

[15] (2004) 7 HKCFAR 187

[16] HCAL 51 of 2007

[17] CACV 78/2018