SHAHIN MIAH MD v. TOTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETTION OFFICE

HCAL 2712/2018

[2021] HKCFI 1828

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2712 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.  He entered Hong Kong as a visitor on 18 August 2006 and was permitted to remain until 1 September 2006.  He became an over-stayer thereafter.  He was arrested by the police on 12 November 2006 and referred to the Immigration Department.  On 25 May and 24 June 2013, he applied for a non-refoulement protection claiming that he will be harmed or killed by members of the Bangladesh Nationalist Party (“BNP”), if refouled.

3.  He had previously made a torture claim under Part VIIC of the Immigration Ordinance.  His claim was rejected by the immigration officer under section 37ZI(1)(b) of the Ordinance on 27 November 2012.  He did not appeal to the Board.  The decision of the Director was therefore final.  Hence, his present claims were assessed on all applicable grounds other than the torture risk ground under Part VIIC of the Immigration Ordinance, ie on the remaining three applicable grounds under the Unified Screening Mechanism (“USM”), namely: BOR 2 Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3] grounds.

4.  By a Notice of Decision dated 10 July 2018, the Director rejected his claims.  His appeal to the Board against the decision in the Notice was dismissed by the Decision of the Board.  Now, he seeks leave to apply for judicial review of that Decision.

The Applicant’s case

5.  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. 

6.  The Applicant’s father was a supporter of BNP which was in power from 2001 to 2006.  Awami Chhatra League is the student wing of Awami League (“AL”).  The Applicant was persuaded by his friends Parvex and Jashim to join Awami Chhatra League as an ordinary member responsible for organising propaganda work.

7.  On 10 November 2004, while on his way home from college, he was stopped by 10 to 12 BNP members and assaulted for not listening to them and continuing to attend AL meetings.  He fainted.  He received 11 stitches on his head and had bruises all over his body, but suffered no fractures.

8.  On 10 January 2005, the Applicant attended a meeting of AL.  As the members were leaving, they started a riot.  He was engaged with other AL members in causing criminal damage to BNP’s clubhouse and a few shops. BNP lodged a complaint against them for criminal damage.

9.  A few days later, the Applicant was kidnapped by BNP members and tortured for about 15 minutes before he was released.  He did not report to the police for he thought the police would not take up his case.

10.  The Applicant sought help from senior AL members but in vain.  He then hid himself in his ancestral home for a year and eight months before coming to Hong Kong in August 2006.

11.  Towards the end of 2016, he was told that his younger brother Sohel was attacked by BNP members a few days after his marriage.  Sohel then went to live with parents-in-law.  In 2018, he was told by his elder brother that BNP members demanded information as to his whereabouts.

The finding of the Board

12.  The Board found the Applicant’s evidence exaggerated and his case inherently improbable.  It was improbable that BNP members would be bothered to threaten the Applicant who was only a new ordinary member of an affiliated wing of AL responsible for organising propaganda work.  His allegation that he had 11 stitches requiring 10 to 12 days’ hospitalisation for punches and kicks was a clear exaggeration.  The Board considered the Applicant only had himself to blame for the second incident because of the criminal damage he did to BNP’s properties.  The Board found he had no need to come to Hong Kong as he was never troubled during his one year and eight months’ stay in his ancestral home, suggesting internal relocation adequate to avoid his possible harm and risk.  The Board concluded his claim illogical and unreliable and that he has not made out a case for non-refoulement protection.

Grounds for judicial review

13.  The Applicant’s grounds as stated in his notice of application for leave to apply for judicial review (Form 86) ran up to 17 pages.  They contain statement of legal principles and quotes from statutory provisions and conventions.  Basically, he advanced the following four grounds for his application:

(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.

These are familiar grounds often seen in such leave applications. The Applicant claimed that these grounds were prepared by someone on his behalf according to the information he provided.  Obviously, they are cloned from other applications and, as the evidence revealed, many of the grounds have no factual support in his case.

Ground (1) – Unlawful exercise of discretion

14.  Under this ground, he 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 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

15.  The main thrust 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 his limited skills in English and he was not given legal representation.  There are other grounds such as misdirection in the law and weighting on the Country of Origin Information (“COI”). 

16.  A claimant does not have absolute right to free language assistance at all stages of the proceedings.  In Re Karamjit Singh[4], 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, 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 assistance himself from among his friends and ethnic community.  Indeed, the Applicant was able to file an adequately well written affirmation in English himself.

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 his case to the Director.  He 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 his NCF, the record of the screening interview and the decision of the Director in the Notice, including the COI.  At this hearing, he admitted that he knew what were in the NCF and the record of the screening interview.  The Notice of the Director was issued to his on 10 July 2018.  It was not until 15 October 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 oral hearing more than three months to seek assistance from among his own circle.  Indeed, he had access to interpretation services as reflected in his affirmation and Form 86 filed in connection with this application which were very well written in English.  Also, he could have sought assistance from the interpreter at the oral hearing before the Board.  His complaint about lack of language assistance for preparing his appeal is over-exaggerated. 

18.  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.

19.  The Applicant had the benefit of legal representation in preparing 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.  He suffered no prejudice due to lack of legal representation before the Board.

20.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation or language assistance, whether in the process before the Board or in preparation of his appeal.  At the hearing, after all these facts were put to him, the Applicant admitted there was no unfairness as a result of the lack of legal and language assistance.  This ground has no prospect of success.

21.  Part of his 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.  In his grounds, he quoted three COI, namely USHR 2010, USRF 2010 and the Report on the International Commission of Jurists and submitted 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 given seven days to file those COI but was unable to produce them for the Court’s consideration.

22.  The COI relied on by the Director and the Board are all from credible and official sources, including Country Report 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 - Bangladesh: Background information, including actors of protection, and internal relocation issued in January 2018 published by the Home Office of 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 his failure to provide any publication contradicting these COI. 

23.  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.

24.  The Applicant also relied on the Board’s failure to call for psychiatric and psychological reports as part of his complaint about procedural unfairness.  In answer to the Court’s question, he admitted he never raised issues about his psychiatric and psychological conditions as evidence of the harm or ill-treatment he received.

25.  The Court considered the complaint about procedural unfairness is absolutely unfounded.

Ground (3) – unreasonableness and irrationality

26.  The Applicant complained that the Board misdirected itself in the law in requiring that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future. The Court was unable to find such direction in the Decision.  It is common sense that past harm and ill-treatment suffered may be treated as evidence of risk of harm or ill-treatment likely to be suffered in the future; but not as a condition precedent in proving such risk.  Any direction along that line cannot be criticised as a misdirection.  Such a direction would assist the claimant in proving his case if indeed he has suffered harm and ill-treatment in the past.

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[12].

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 three 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 three 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 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 violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[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] CACV 78/2018; [2018] HKCA 460

[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)