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

HCAL 2765/2018

[2021] HKCFI 1281

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2765 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.  The Applicant is a Bangladesh national.  He had arrived Hong Kong unlawfully and was arrested by the police on 1 August 2007.  He made a torture claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) on 26 September 2007. His application was refused by the Director of Immigration (the “Director”) on 26 September 2013 and his appeal to the Torture Claims Board was dismissed.  That dismissal was final.

2.  On 10 October 2013, he informed the Director that he wished to have his claims assessed under all other applicable grounds available under the Unified Screening Mechanism (“USM”).  In due course, he submitted a supplementary claim form and attended a screening interview conducted by the Immigration Department on 14 February 2018.  His non-refoulement claims were assessed on all the other three applicable grounds under the USM, namely: and BOR 2 Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3].

3.  By a Notice of Decision dated 26 February 2018 (the “Notice”), the Director rejected his claims. On 8 March 2018, he lodged an appeal to the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) against the decision of the Director.  On 26 November 2018, the Board dismissed his appeal (the “Decision”).  On 5 December 2018, he applied for leave to apply for judicial review against the Board’s Decision notified to him on 3 December 2018, ie the Decision dated 26 November 2018.

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in his supplementary claim form which was prepared by him with assistance of the Duty Lawyer Service and his evidence at the screening interview. 

5.  The Applicant is a Muslim.  He is single.  He used to live with his mother, a brother and a sister in Shonapur in Bangladesh.  His father and a brother live in Saudi Arabia while another brother lives in Malaysia. 

6.  His father had a piece of land in Shonapur with two shops which were leased to tenants. His family never had good relations with their three neighbours, Shafiqul, Monsur and Hasan who are wealthy land owners and wanted to take over their land.  The neighbours sell coconuts and beetle leaves.  They had good connections with the Bangladesh Nationalist Party (“BNP”) and were connected to the local BNP leader, Shafiq Bhuiyan.

7.  Towards late 2006, Shafiqul began taking fruits from the Applicant’s trees in the land.  Later, Shafiqul and Monsur broke open the Applicant’s two shops when they were vacant and occupied them.  The Applicant complained to the police but to no avail.

8.  One night in late 2006 or early 2007, the Applicant was assaulted by Shafiqul, Monsur and two men.  He did not report to the police as he thought the police would not do anything. He went to stay with his grandmother in Raipur for two to three days.  Then he returned home.  One day in February 2007, his mother told him that she heard from people that two cases had been filed against him for abduction and indecent assault with Hasan and Monsur as witnesses.  He had not committed the offences.  Out of fear, he went to stay with his grandmother for two or three days and then went to stay with his cousin in Fakirapool in Dhaka.  He was later told that a week after he left, the police went to his home to look for him.  One day, he saw relatives of Shafiqul and Monsur in Fakirapool.  He felt unsafe and took a flight to China on 16 March 2007.  From there, he sneaked into Hong Kong.

9.  Since he left Bangladesh, the police and his enemies had been to his home to look for him. His younger brother who returned from Saudi Arabia was also assaulted by associates of Shafiqul, Monsur and Hasan.

The finding of the Board

10.  The Board found there were numerous inconsistencies between the Applicant’s evidence before the Board and those in his supplementary claim form and screening interview.  The Board considered his evidence confused, inconsistent over time and far from being convincing.  In particular, the Applicant was inconsistent and confused about the ill-treatment and adverse action from his three neighbours and about the circumstances of his claims about having been charged with criminal offences.  The Board had carefully discussed with him about the inconsistencies, vagueness and confusions in his evidence but was not satisfied with his explanation.  The Board found he was ready to adjust and adapt his evidence to reconcile otherwise inconsistent statements, and was willing to embellish and exaggerate his evidence in order to strengthen his claims to be owed protection.  Despite ample allowance having been given for failure in memory, the irregularities in his evidence and claims caused the Board to have doubts about the reliability of his evidence and the degree of confidence it could have in accepting his claim.  The Board devoted seven pages in its Decision setting out the inconsistencies and confusions (paragraphs 59 to 80).

11.  In conclusion, the Board did not consider the Applicant a reliable witness and did not accept his evidence about what occurred to him in Bangladesh was based on his personal or actual experiences.  The Board found his evidence was embellished, exaggerated and fabricated in part to create a claim to be owed protection.  Specifically, the Board did not accept he was ever involved in a dispute with powerful neighbours in his village or that he was assaulted and beaten by such people or their agents or that he was ever threatened in any way, or subject to an arrest warrant in Bangladesh.  

12.  The Applicant bore the burden of proving his fear and risk albeit on a relatively low standard. However, having found the Applicant incredible and rejected his evidence, the Applicant has failed to discharge his burden of proof.  Having failed to prove his factual case of fear and risk, his claims for protection under any of the three remaining applicable grounds have no leg to stand on. 

Grounds for judicial review

13.  In his twenty-page application (ie Notice of application for leave to apply for Judicial Review) (“Form 86”), the Applicant quoted statutory provisions and precedents and advanced all possible grounds of review:

(1)  procedural unfairness;

(2)  unreasonableness or irrationality in the Decision in the public law sense; and

(3)  error of law. 

The essence of his complaint revolved around the finding of facts by the Board, lack of language and legal assistance and that the Board’s reliance on the Country of Origin Information (“COI”). 

14.  On procedural unfairness, the Applicant set out four sub-grounds:

(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.

15.  Under sub-ground (1), 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 cannot be a valid ground for application for leave.  If an 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 the 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.  The answer to this question will become obvious after considering the other grounds.     

16.  Under sub-ground (2), the Applicant accused the Board of having acted in a procedurally unfair manner in dealing with his appeal.  He did not give any particulars.  Scattered in his twenty-page application, he mentioned three points which may be relevant.  These are about the COI; psychological report and psychiatric report; and legal and language assistance.

17.  First, he mentioned in page 15that the Board failed to carry out sufficient research and inquiry into the COI.  At page 17 to 19, he accused the Board of failing to take sufficient steps to obtain further COI and put proper weight on human rights situation in Bangladesh at the time of the Applicant’s threatened torture and threats to his life and subsequent killings.  He mentioned three COI in particular, namely: USHR 2010, USRF 2010 and the International Commission of Jurists (“ICJ”) Report on the ICJ Mission to Bangladesh (the “ICJ Report”).  His accusations are empty assertions.  He did not say what was the human rights situation which the Board should have inquired into.  When asked what the USHR 2010, USRF 2010 and ICJ report were about, he could not answer.  He said he did not remember.  Then, he said his friend helped him to complete the Form 86.  He had no idea what those COI are about.  Through its own research, the Court was unable to find out what USHR 2010 and USRF 2010 are.  Though the Court was able to access the website of ICJ, it was unable to find anything helpful to the Applicant’s case.  The Applicant also complained about the Board relying on COI which were outdated and news which were not officially recognized or were hearsay.  Again, he did not give particulars.  The Court was unable to find the Board had placed any reliance on any news in reaching its Decision.  But in any event, these human rights situation and COI are totally irrelevant when in the first place the Applicant failed to prove his life was at risk.  The Board had rejected his evidence about his dispute with his neighbours, their threats and assault.

18.  Second, as for his complaint about the Director’s or the Board’s failure to call for psychiatric and psychological evaluations on his person, it is all the more ridiculous.  There was never any indication in his supplementary claim form or at the screening interview that he suffered any such condition as a result of ill-treatment in Bangladesh.  He never mentioned anything to that effect before the Board either.

19.  Third, he complained about lack of legal representation and language assistance in preparing and attending the oral hearing before the Board.  He said it was procedurally unfair that the appeal bundle was provided to him only a few days before the appeal.

20.  In Re Zafar Muazam[4], Re Zunariyah[5], Re Zahid Abbas[6], Re Tariq Farhan[7], and Re Lopchan Subash[8], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[9] nor the judgment of FB v. Director of Immigration[10] 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.  What is important is whether his rights were not prejudiced for want of legal and language assistance.

21.  The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter in preparing his supplementary claim form and 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.  He complained that the appeal bundle was only provided to him a few days before the appeal and he did not have sufficient time to prepare for the appeal.  The appeal bundle is basically made up of his supplementary claim form, the record of the screening interview and the decision of the Director in the Notice, including the COI.  His case as presented by his legal representative were also before the Board.  He certainly knew what were in the supplementary claim form and the record of the screening interview.  The Notice of the Director was issued to him on 26 February 2018.  It was not until 12 September 2018 that the oral hearing was held.  The Notice is in English, though 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 about seven 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.  That the appeal bundle was only provided to him a few days before the hearing caused no prejudice to him.  His complaint is grossly exaggerated. 

22.  He complained that the Decision of the Board dated 26 November 2018 was only received by him on 3 December 2018 and the secretariat of the Board refused to notify him the result on the phone.  It is not known why it took a few days for the Decision to reach him.  It may be because he had not given a complete correspondence address to the Board or there were other reasons.  The secretariat of the Board had not been invited to respond.  In any event, the Applicant suffered no prejudice.  He was able to lodge his application for leave to apply for judicial review well within time. 

23.  As for sub-ground (3), the Applicant’s complaint is basically against the Board’s finding of facts, which is exclusively a matter for the Board as the tribunal of fact.  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[11].

24.  As outlined above, the Board set out the applicable legal principles and identified the issues correctly.  It bore in mind the burden of proof of fear and risk is on the Applicant and that the standard of proof is a relatively low one.  It had regard to the provisions of section 17 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme when assessing credibility of the Applicant.  It reminded itself of the leading authorities on assessing the claims made by a person seeking protection; that decision-makers should be sensitive to the potential difficulties faced by asylum seekers in putting forward their claims; and that decision-makers should adopt a reasonable approach to make their findings with regard to credibility, and afford the benefit of doubt to the asylum seekers who are generally credible but unable to substantial all of their claims.  It gave ample opportunities to the Applicant to explain the inconsistencies in his evidence and gave him ample allowance for failure of memory through lapse of time.

25.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was unable to find anything to suggest that the Board’s assessment of the Applicant’s credibility was the result of any errors of law or procedural unfairness or was unreasonable or irrational.  On the basis of the evidence, it was entirely open to the Board to reach the Decision as it did.

26.  As for sub-ground (4), it is just an empty assertion.  The Applicant gave no particulars as to the way in which the Board was alleged to have failed to meet the greater care and duty owed to the self-represented Applicant.  For same reasons as in the preceding paragraphs, the Court cannot find any substance in this complaint.

27.  As for Ground (2), it has basically been dealt with under Ground (1) sub-ground (3): see paragraphs 23 to 25 above.  It appeared from page 16 of his application that the Applicant’s focus under this ground is on the COI.  He complained about the Board cherry-picking and taking into account and putting weight on COI which were of little or no relevance; failed to evaluate and make a finding of facts as to whether there exists in Bangladesh a consistent pattern of gross flagrant or mass violations of human rights; failed to assess whether state protection exists in Bangladesh. As explained above, the Applicant having failed to discharge the burden of proving his fear and that his life is at risk, the Board did not find it necessary to consider or give much weight to all those COI or state protection.  The Board did comment on internal relocation as an option.  But that was on an “even if” basis, ie assuming that the Applicant’s risk was real, which the Board did not accept.  That comment is not necessary for the Board’s Decision. 

28.  Under Ground (3), the Applicant complained the Board had misdirected itself on the law by taking into account 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 not able to find such direction having been given by the Board.  Having rejected the Applicant’s evidence about his dispute with the powerful neighbours and his evidence of having been assaulted by them and their associates, the Board did not find it necessary to assess the risk of torture in the future and to so direct itself.

29.  As for the overall or general complaint about irrationality and unreasonableness in the Board’s finding, these grounds of complaint are against the finding of facts by the Board.  As already explained above, the function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  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 remaining three applicable grounds under the USM; 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 claim for non-refoulement protection under any of the remaining three applicable grounds.  The Decision of the Board was utterly without fault. 

Conclusion

30.  Accordingly, the Court 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 claims are not reasonably arguable.  There is no realistic prospect of success.  Accordingly, leave to apply for judicial review 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

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 2/2018, (unreported) 23 March 2018

[5] [2018] HKCA 14

[6] [2018] HKCA 15

[7] [2018] HKCA 17

[8] [2018] HKCA 37

[9] (2004) 7 HKCFAR 187

[10] HCAL 51 of 2007, (unreported) 5 December 2008

[11] [2018] HKCA 524 at para 14(1)