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HCAL 823/2019
[2021] HKCFI 1304
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No.823 of 2019
BETWEEN
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Hosain Shahin |
Applicant |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative Respondent |
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And |
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Director of Immigration |
Putative
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
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 25 February 2019 (the “Decision”).
2. The Applicant is a Bangladeshi national. He sneaked into Hong Kong on 21 December 2015 and was arrested by the police on the same day. On 24 December 2015, he sought non-refoulement protection claiming that he will be harmed or killed if returned to Bangladesh as a result of political violence.
3. In due course, his non-refoulement claim was 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 23 January 2018 (the “Notice”), the Director of Immigration (the “Director”) rejected his claim. He lodged an appeal to the Board against the decision of the Director in the Notice. His appeal was dismissed by the Board on 25 February 2019. On 26 March 2019, he applied for leave to apply for judicial review against 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 and his family are members of the Bangladesh Nationalist Party (“BNP”). His father was an active supporter who often met with senior BNP members. He accompanied his father to attend BNP rallies or other activities around six to seven times a year.
6. In 2014, there was a national election. His father actively campaigned for the BNP. However, the Awami League (“AWL”) won the election by suppressing opposition parties, including the BNP. His father went missing after the election.
7. Since two to three months after the election, AWL supporters visited his home looking for him, his father and brother. The Applicant and his brother were either not at home or escaped through the backdoor. Out of fear, the Applicant’s family relocated to Mirpur in 2015.
8. One day, he and his brother saw some AWL supporters in the market. Thinking that the AWL supporters were looking for them, they returned home. There were constant news reporting AWL supporters harming opposition party members. Out of fear for their safety, the Applicant’s mother arranged for their passage to China. From Mainland China, they sneaked into Hong Kong by boat.
9. While in Hong Kong, the Applicant’s mother told him that it remains unsafe for him to return to Bangladesh as the AWL supporters are still looking for him and his brother.
10. In his notice of appeal, the Applicant alleged that AWL supporters commit many crimes at home and go unpunished, his relatives’ houses were arsoned, a false case was lodged against him and his wife. He said his wife told him that AWL supporters came to his house looking for him. He also complained about the Director’s reliance on Country of Origin Information (“COI”) in assessing availability of state protection and internal relocation.
11. At the hearing, the Applicant gave further evidence that he was unable to contact his mother, suggesting that she went missing because of AWL supporters.
The finding of the Board
12. The Board basically accepted the Applicant’s evidence except in one respect. It rejected his evidence about his having lost contact with his mother. That obviously arose because his evidence was unsatisfactory. He told the Board at one stage that he wrote to his mother but his mother did not receive his letters. Then he said his mother had moved and he did not know her address. The Board was left with a distinct impression that he was inventing evidence in response to the Board’s questions. The Board was of the view that had he genuinely lost contact with his mother, he would have made a far more concerted effort to re-establish contact with her.
13. The Board noted that the COI is broadly consistent with the Applicant’s claims of political violence in Bangladesh. It observed in particular, the conclusion in the Australian Department of Foreign Affairs and Trade, DFAT Country Information Report - Bangladesh that the supporters of AWL and BNP were subject to low level inter-party violence, but in proportion to the size of both parties, the number of casualties of such violence was relatively low.
14. The Board noted that the Applicant confirmed at the hearing that what he wrote in his notice of appeal about his wife and children being targeted for harm, the false case made against him and his wife and his relatives houses being arsoned are all incorrect. These were written by his friend for him. Hence, the Applicant suffered no violence at all in Mirpur. Hence, the Board found it was only out of his fear, albeit genuine, that he felt it necessary to flee to China; but there was no objective evidence of risk since his relocation to Mirpur.
15. On the basis of the Applicant’s evidence and the COI, the Board was satisfied that the Applicant’s fear of harm was genuine. But given that he has no personal political profile associated with the BNP and that after his relocation to Mirpur he was no longer targeted for harm by supporters of the AWL, the Board considered there is only a remote or speculative risk and not a real risk of harm from the AWL supporters, should he be refouled to Bangladesh. Having considered the claims of the Applicant individually and cumulatively, as well as his personal circumstances, the Board did not consider he faces a real risk of proscribed harm from supporters of the AWL, if he is refouled to Bangladesh.
Ground (1)
16. The Applicant advanced three grounds for judicial review. In his first ground, he alleged:
“1. The Board erred by failing to maintain the high standard of fairness by not holding an oral hearing allowing the Applicant an opportunity to put forward her (sic) case.
2. Alternatively, …
(1) The Board erred in approaching the matter by simply trying to see whether she could ‘find fault with the decision of the Immigration Officer’. The Director of Immigration was in fact excused from attending the appeal hearing. It shows that it is a general practice of the board to not question or find fault with the decision of the Director of Immigration.
(2) As part of the rehearing, the Board ought to have considered matters such as the country conditions of the Applicant’s country of origin…”
17. Paragraph 1 of this ground is factually incorrect. As stated in paragraph 8 of the Decision, the Board did hold an oral hearing on 14 November 2018. The Court explained to him that according to paragraph 7 of the Decision, two screening interviews had been arranged for him but he declined to attend because of his illness. Then, the Director allowed him to make written submissions instead and he made written submissions with the assistance of a legal representative from the Duty Lawyer Service and interpreter. The Applicant accepted this was the case. Besides, the decision of the Director in the Notice was superseded by the Decision of the Board and is no longer susceptible to judicial review: Re Moshsin Ali[5]. Whatever happened leading to the decision of the Director in the Notice becomes background only.
18. On the evidence available, the Board observed a very high standard of fairness. It discussed the Applicant’s evidence with him. It even informed him its concerns and doubts about his evidence that his mother went missing[6]. It was through such discussion that the Board obtained the Applicant’s confirmation that what he said in his notice of appeal about his wife and children being targeted etc were incorrect and that the notice of appeal was drafted by his friend[7]. There is absolutely no substance in this ground.
19. Paragraph 2 of this ground is purely speculative. There is nothing to suggest that by excusing the attendance of the Director, the Board was accepting his Decision wholesale and was only looking for errors. In paragraph 4 of the Decision, the Board made it clear that the appeal was a re-hearing. The Director was excused from the hearing obviously to save costs. It also indicates that the Director took a neutral position and not an adversarial position. By excusing the attendance of the Director, the Applicant was in a more advantageous position in that the Board will be deprived of a reply to any argument raised by the Applicant. When the Applicant complained about unfair treatment by the immigration officer at the screening interview, the Board made it clear to him that the appeal was a rehearing on the basis of the evidence and submission before the Board and that the Decision of the Board would supersede the decision in the Notice.
20. As for the complaint about the Board not having considered the COI, this is also manifestly incorrect. The Board referred to the COI quoted by the Director and discussed some additional COI which it obtained with the Applicant, including the Australian Department of Foreign Affairs and Trade, DFAT Country Information Report - Bangladesh and the Asylum Research Consultancy. There is no substance in this ground.
Ground (2)
21. Under this ground, the Applicant alleged that there are minimum standards of procedural fairness required in a decision-making process and the decision maker is under a duty to fairly. There is no dispute about these principles. But the Applicant did not give particulars as to breaches of this duty. As outlined in the finding of the Board and in the discussion relating to Ground (1), the Board discussed in some depth with the Applicant about his evidence and the relevant COI. Except for his new evidence about his mother having gone missing, the Board basically accepted his evidence in toto. In respect of his evidence about his mother, the Board expressed its concern about his evidence and gave him opportunity to proffer explanation. The Board did observe a high standard of fairness.
Ground (3)
22. Under this ground, the Applicant alleged:
“5. It was not taken into the consideration when making the Decision that the Applicant was not legally represented after the Director’s Decision. The Board failed to take into account that the Applicant has insufficient legal knowledge in Immigration Department’s guidelines and this could also jeopardize her representation at the appeal process.
6. The adjudicator did not informed (sic) the Applicant that she (sic) could complain. The adjudicator had never been informed in her (sic) language that she (sic) could complain. Even if a channel to complain was available, the Applicant dared not complain because she (sic) was afraid of being subject to more unsatisfactory outcome.”
23. In Re Zafar Muazam[8], Re Zunariyah[9], Re Zahid Abbas[10], Re Tariq Farhan[11], and Re Lopchan Subash[12], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[13] nor the judgment of FB v. Director of Immigration[14] 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 despite the lack of legal representation, the claimant suffered any prejudice.
24. The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter in preparing his non-refoulement claim form in presenting his case to the Director. He also had the services of a qualified interpreter at the oral hearing before the Board. Though he was not legally represented, all that he wished to present to the Board were contained in the non-refoulement claim form prepared by him with assistance from the Duty Lawyer Service. The Board had properly directed itself as to the burden of proof, standard of proof, the high standard of fairness required and the legal principles relating to the four applicable grounds. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board. The complaint about lack of legal assistance is over-exaggerated.
25. As for his complaint that he had not been informed about his right to complain, this ground is incomprehensible. Insofar as he meant complaint against the decision of the Director is concerned, he had been informed of his right to appeal against the Notice as is clearly stated in the Notice of Decision. Indeed, he appealed the Notice before the Board. Insofar as he meant complaint against the Decision of the Board, he is in fact making a complaint by seeking leave to apply for judicial review of the Decision of the Board. An attempt was made at this hearing to ascertain from him what this complaint was. Despite a number of suggestions having been made to him, he said he did not understand. In the end, he said he did not want to say anything. Thus, the Court concluded that there is no substance in this ground.
Conclusion
26. The role 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 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[15].
27. 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 burden of proof and standard of proof, 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 Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. It was on that basis that the Board found there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds. The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success. Accordingly, leave to apply for judicial review is refused.
Dated the 1stday of June 2021.
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(Sammi Wu) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 1 June 2021
Hosain Shahin
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 1 June 2021
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10071/18/1/344/B1140
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2436/17 (Formerly RBCZ 11900/16) (T3S112)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
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 549
[6] Paragraph 33 of the Decision
[7] Paragraph 34 of the Decision
[8] cacv 2/2018, (unreported) 23 March 2018
[9] [2018] HKCA 14
[10] [2018] HKCA 15
[11] [2018] HKCA 17
[12] [2018] HKCA 37
[13] (2004) 7 HKCFAR 187
[14] HCAL 51 of 2007, (unreported) 5 December 2008
[15] [2018] HKCA 524 at para 14(1)
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