KHATUN ARZINA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2798/2018

[2021] HKCFI 1544

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2798 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 3 December 2018 (the “Decision”).  The Applicant failed to turn up on three hearing scheduled to hear her application.  Hence, her application is determined on paper.

2.  The Applicant is a Bangladesh national.  She entered Hong Kong on 14 June 2013 to take up employment as a foreign domestic helper.  Her contract of employment was prematurely terminated and she became an over-stayer since mid-January 2014.  She was arrested by the police on 13 July 2016 for overstaying her permit for two and half years.  On 16 July 2016, she applied for non-refoulement protection claiming that she will be harmed or killed, if refouled, because she was targeted for political violence.

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 the Decision dated 23 March 2017 (the “Notice”), the Director of Immigration (the “Director”) rejected her claims.  She lodged an appeal to the Board against the decision of the Director in the Notice.  Her appeal was dismissed by the Board on 3 December 2018.  She now seeks for leave to apply for judicial review of the Board’s Decision.

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

5.  The Applicant was married to a husband whose family members were all voters of the Bangladesh Nationalist Party (“BNP”).  Her husband was an active leader in the village and ran some of the meetings.  The Applicant did not know his position in the party and did not participate in the party’s affairs.

6.  One night in January 2009, her husband was killed by members of the opponent party, Awami League (“AL”) when he was returning home from his shop.  The Applicant reported the murder to the police, but the police told her to forget about the incident.  On the same night, she received a telephone call from a senior member of AL threatening her to stop pursuing the matter and to stay at home looking after her daughter.

7.  Feeling unsafe on her own, the Applicant sought support and protection from BNP and began participating in rallies and meetings of BNP.  She became an active leader in the village at the end of 2009.  Then, the president of AL at the village level approached her and invited her to join their party.  She refused.  The president threatened her that she would not be able to live in the village peacefully.  After the incident, she noticed anonymous people wandering around her house from time to time.  Between January and March 2010, she was attacked by AL members every month.

8.  Having failed to kill her, AL people changed tactic and began to spread rumours of her seeing different men causing her embarrassment.  In July 2010, the Applicant, her family and the family of her in-laws had a meeting.  In that meeting, her father-in-law told her father that they would not keep the Applicant in their family any longer. 

9.  Thus, the Applicant moved back to her parents’ family at around the end of 2010 or early 2011.  She continued to receive threats from AL.  Her brother was intercepted by AL people and told to stop her from returning to the village to attend BNP meetings.  Her family began doubting her and talked to her badly.  In the end of 2011 or early 2012, the Applicant decided to move to live with a distant relative in Dhaka, leaving her daughter to the care of her mother.   

10.  The Applicant worked as a domestic helper in Dhaka.  In around August or September 2012, she met an AL member who threatened to take action against her.  So the Applicant quitted her job and sought another employment.

11.  One day in January 2013, while the Applicant was in the street with her employer, she met three AL members who spoke badly about her to her employer.  Her employer was enraged and scolded her.  Thus, she quitted her job.

12.  Then, she returned to work for her distant relative who helped her find employment in Hong Kong. 

The finding of the Board

13.  The Board found the murder of the Applicant’s husband had little relevance to her claim.  The Board was of the view that if the AL people could kill anyone with impunity, they should have killed the Applicant long before the rumours arose.  It found that the Applicant left the village because of the rumours and with a view to find an independent life rather than because of the risk to her life.  It found that the Applicant’s claim of risk to life was not genuine and not substantial.

Grounds for judicial review

14.  The Applicant advanced four grounds of appeal in her Notice of Application for leave to apply for judicial review:

(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)

15.  Under Ground (1), the Applicant 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 she truly met the requirement for protection.   This is a finding of facts within the province of the Board.  In this regard, the Decision of the Board is reviewable for having committed errors of law, procedural unfairness, unreasonableness or irrationality.  Having considered the totality of the evidence and the other grounds of judicial review, the court was satisfied that there is no substance in this ground of application.

Ground (2)

16.  Under Ground (2), the Applicant accused the Adjudicator, ie the Board, of having acted in a procedurally unfair manner in dealing with his appeal.  She did not give any particulars but she emphasised the fact that she was only given the appeal bundle six days before the hearing before the Board. She complained that the majority of the documents in the appeal bundle were in English and she “strongly believe that there was insufficient time for him (sic) to prepare for the hearing due to his (sic) limited skills in English and being unrepresented which is quite apparent to the Director of Immigration.”; and given the shortness in time, she could not arrange reasonably cheap interpretation service.  The thrust of the above statement is about lack of language assistance with a slight mention about lack of legal representation and insufficient time for preparation.  The Court treated these three issues as the basis of her complaint about procedural unfairness.    

17.  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 claimant is prejudiced for want of legal and language assistance.

18.  The Applicant had the benefit of legal representation in preparing her non-refoulement claim form, in attending the screening interview and presenting her case to the Director.  She had no complaint about lack of legal assistance up to that stage.  Her complaint is that she had no legal assistance thereafter.  However, all the benefits that legal representation could have afforded her are contained in her written submissions, her non-refoulement claim form and her answers in the screening interview given under legal advice.  All these had been presented to the Director, which were then presented to the Board.  She also had the services of a qualified interpreter at the oral hearing before the Board to assist her in presenting her appeal.   Despite she was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded her 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.  She suffered no prejudice due to lack of legal representation before the Board.

19.  The Court was sympathetic with her situation and understood her difficulties caused by her limited skills in English.  It was her 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 resources herself from among her friends and the Bangladeshi community.  Indeed, she was able to file a very well written affirmation in English prepared for her, obviously out of her own resources.

20.  More specifically, the appeal bundle is basically made up of her non-refoulement claim form, the record of her screening interview, and the Country of Origin Information (“COI”).  She knows what is contained in her non-refoulement claim form which was filled in by her with the assistance of an interpreter and the Duty Lawyer Service.  She knows what is contained in the record of screening interview which she attended with the assistance of interpreter and legal representation.  The record had been read back to her and she signed to acknowledge that she understood and agreed with the contents and that no amendment was necessary.  Recognising her language disability in foreign soil and the importance of her claim, she ought to have taken notes, at least very brief ones, to remind her of what she had said or written rather than relying on the host country to provide her the convenience of interpretation at her fingertips.  The COI are, unfortunately, not in Bengali.  The COI are information about her own country published by very credible sources.  She ought to know about the information.  If she considered necessary, she should have sought assistance from the interpreter at the oral hearing.

21.  As for her complaint about the shortness in time for preparation, the Notice which she sought to appeal was issued by the Director on 23 March 2017.  The hearing of the Board was held on 10 August 2018.  In between, she had more than one year and four months to prepare her appeal.  It lies ill in her mouth to say that for all these months she did not have sufficient time to prepare for her appeal and put the blame on the late service of the appeal bundle.  Besides, as explained above, the appeal bundle is basically made up of her non-refoulement claim form and the record of his screening interview.  She knows what is contained in these documents.   The COI are, unfortunately, not in Bengali.  She cannot expect these documents to be fully translated to her.  She has to find resources herself from among his friends. 

22.  The difficulties and procedural unfairness raised by her are more apparent than real.

Ground (3) – Unreasonableness and irrationality

23.  Under Ground (3), the Applicant argued that the Decision of the Board was unreasonable or irrational in the public law sense or was the result of procedural errors or unfairness.  Again, she gave no particulars.  The complaint of procedural errors and unfairness was covered in Ground (2) and rejected by the Court. 

24.  The complaint of unreasonableness and irrationality is obviously directed at the outcome of the Decision.  This is in substance a challenge of the finding of facts of the Board.  The function of the court in judicial review is not to re-assess the non-refoulement claim 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 scrutinise 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[12].  Having rigorous 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; and observed a very high standard of fairness.  The Board’s conclusion that there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds was utterly without fault. There were no errors of law, procedural unfairness, unreasonableness or irrationality in its Decision which could be regarded as procedurally unfair, Wednesbury unreasonable, or irrational.

25.  The Applicant complained about the Board’s reliance on COI which is not officially recognized or is hearsay or outdated and the Decision based on such information is just groundless speculation.  She did not particularize. The COI relied on by the Director and presumably by the Board are all from credible and official source, including Country of Origin Information Report of Bangladesh issued by the United Kingdom Home Office published on 31 August 2013; Country Reports on Human Rights Practices for 2011 – Bangladesh, published by the United States Department of State on 24 May 2012; and The World Factbook – Bangladesh dated 12 January 2017, issued by United States Central Intelligence Agency.       It is also not clear what COI were relied on by the Board.  The Board did not mention.  But it is not necessary to labour on this point because the finding of the Board is that on the fact the Applicant’s fear and risk are not well-founded.  Hence, police protection and internal relocation are not necessary for the Decision.

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

26.  Under Ground (4), the Applicant accused the Board of having failed to meet the greater care and duty owed to a self-represented claimant.  Again, she did not particularize the alleged failing of the Board. In the opinion of the court, on the face, the Board had fully considered the Applicant’s case; and she suffered no disadvantage for not being legally represented.

Conclusion

27.  The Court therefore concluded that there was nothing that shows there was any error of law or procedural unfairness or irrationality in the Decision of the Board.  The Court found that the Board adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable.  The Applicant’s claim was not reasonable arguable.  There was no realistic prospect of success.  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] [2018] HKCA 524 at para 14(1)