SUKRAN HABIBUR RAHMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 255/2019

[2022] HKCFI 286

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 255 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 claimed he is a Bangladesh national and had entered Hong Kong without permission in May 2015. He surrendered to the Immigration Department on 21 May 2015 and made a non-refoulement claim on 27 August 2015. 

3.  In due course, his non-refoulement claims were assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  These claims were rejected by the Director in his Notice of Decision dated 8 February 2018.  His appeal against the decision of the Director was dismissed by the Board in its Decision dated 14 January 2019.  He now seeks leave to apply for judicial review of these decisions.

The Applicant’s case

4.  The following is a summary of the Applicant’s case mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with the assistance of the Duty Lawyer Service and other documents prepared by the Immigration Department as contained in the hearing bundle before the Board. 

5.  In gist, he claimed that he was at risk of being seriously harmed, if returned to Bangladesh, by members of the Awami League (“AL”) political party because of his support for the Jamaat-e-Islami (“JeI”) and by the police over false charges of possession of firearms and attack on the police with a grenade.

6.  The Applicant is a Bangladesh national, now aged 34.  He is married and has two children.  He had received 12 years’ education and had worked as a shoe salesman and wholesaler.

7.  He began supporting JeI in 2004 or 2005.  He attended meetings and rallies and made monetary contributions from time to time.  Since 2006, he had been threatened by AL people about once a month not to mingle with or support JeI. 

8.  AL won the general election in 2008.  He was told by his family members that on the day following the election when he was not at home, the President and General-Secretary of AL in his area Nabinagar came to his house with 20 to 25 subordinates.  They were armed with hockey sticks and axes and vandalized his home.  They told his family that they were going to kill the Applicant as soon as they found him.  The Applicant’s village was full of AL supporters and they sought revenge on JeI supporters after winning the election.  The Applicant went to stay with his father-in-law in Bhairab for a day and then to his uncle’s house in Badda, Dhaka where he stayed for 7 to 8 months.

9.  In August or September 2009, the Applicant attended a gathering of 400 to 500 people in Badda.  The gathering was confronted by 30 AL people armed with guns, hockey sticks and tear gas and 25 to 30 police officers.  The people began beating JeI people.  the police fired tear gas into the crowd and made some arrests including the Applicant.  The Applicant was detained for one night in the Badda Police Station.  He was assaulted by 3 to 4 police officers with batons on his back, arms and legs.  He susstained bruises and swelling all over his body.  He was released on bail after his uncle paid a bribe of 50,000 Taka.  He was required to report to the police station every 7 days.  He was hospitalised for 2 to 3 days for treatment.

10.  About 7 days after the rally, he went to stay with his sister in Khilkhet, about 5 kilometres from Badda.  He did not report to the police as he feared the AL people would attack him.  He was told by his uncle that the police had come to his house to look for him as he had been charged with fighting in public place. 

11.  In mid-2012, he started his own business as a wholesaler of shoes.  One day in late 2013, he was approached by the President and General-Secretary of the Jobo League (“JL”), the youth wing of AL who demanded 1 million Taka protection money or to close his business if he did not pay.  He asked for time to pay.  The JL people came back every four months to demand payment.

12.  The Applicant approached the AL President in Khilkhet to ask for help and was told by him to pay or to close his business. Then he contacted the JL President and made a deal to pay 400,000 Taka instead of 1 million as originally demanded.  Between mid-2012 and mid-2015, he participated JeI activities about two or three times.

13.  In about February 2014, he received an anonymous telephone call telling him that his mother was seriously sick.  He returned home to see his mother.  The day after his return, the President and General-Secretary of JL and their 15 to 20 subordinates forcefully abducted him and took him to an unknown location.  The President told him that they had been looking for him for a long time as they wanted to eliminate JeI people.  They then punched and hit him with sticks until he fell unconscious.  When he woke up, he found himself in hospital.  He did not know how he got there.

14.  On the following day, he returned to Khilkhet and obtained treatment at a private clinic.  He was told by his sister that the police had been to her house looking for him and that he had been charged with two further offences, including possession of fireams and attacking police with a hand grenade. 

15.  The Applicant left Dhaka in March or April 2014 to stay with another uncle in Mymensingh, then with a friend in Netrakona for 10 days, then at his cousin’s house in Gaibandha for two to 3 months and then at his friend’s house in Mirpur for 7 days.  He then stayed in different parts of Dhaka and was moving around for a year.

16.  In late 2014, he was told that his shop in Khilkhet had been vandalized and closed down by the local President and General-Secretary of JL.

17.  Fearing danger and harm, he fled to China on 12 May 2015 and then sneaked into Hong Kong.  He encountered no difficulties in obtaining his passport and in leaving the airport in Bangladesh. 

The finding of the Board

18.  The Applicant gave evidence at the oral hearing before the Board.  His oral evidence is inconsistent with his case as asserted by him in his NCF which was prepared with the assistance of the Duty Lawyer.  The Board devoted ten and half pages discussing the Applicant’s evidence[5]. The Board found his evidence vague, inconsistent and confusing.  It identified numerous inconsistencies and contradictions between his evidence given in the NCF and his evidence at the oral hearing.  The Applicant was unable to reconcile or explain the inconsistencies.  The most significant inconsistency is his evidence that he was only detained by the police for one night and day, but the documents he produced indicate that he was held in custody from December 2009 to May 2015 when he was given bail because of a serious skin condition and because his father had die and his mother was sick. Incidentally, one of the court orders he produced shows that he was granted bail a few days before he flew from Bangladesh to China.  He was unable to explain the inconsistencies and contradictions.  These documents cast serious doubts on the veracity of his case about his stay in Khilkhet from September 2009 to about March 2014, what happened during that period and his being enticed to return home and then abducted and tortured by JL people or the authenticity of the documents and his credibility.  In the final analysis, the Board doubted the genuineness of those documents and did not give weight to them. The Applicant was also inconsistent by a wide margin as to when he was told by his sister about the firearms and explosives charges. 

19.  The Board discussed the inherent improbability of the evidence.  It found it difficult to understand, for example, how the Applicant could have obtained his passport and left Bangladesh via the airport, if he was, as he alleged, subject to an arrest warrant.  The Board rejected his explanation that he paid his agent to bribe the officials at the airport unconvincing.

20.  The Board found the Applicant to be an unreliable witness.  The Board found his evidence changed over time and had been fabricated in part to create a claim for protection.  It had no confidence about the reliability of his evidence.  The Board concluded that his claims were not credible.

21.  The Board accepted the Applicant is a citizen of Bangladesh, married with two children and that his wife and children remain in Bangladesh.

22.  The Board did not accept he was a formal member or supporter of JeI or that he was involved in any activities of a political nature in Bangladesh, such as attending meetings or rallies or that he was ever a person of adverse interest to AL or JL or supporters or members of either group in his home area or elsewhere in Bangladesh, for reasons of his claimed JeI membership or support or any other reason or matter.

23.  It does not accept the Applicant was ever subjected to adverse treatment in Bangladesh by the police at the instigation of AL or JL, including by being arrested detained and mistreated, or that he was ever threatened or mistreated by AL members and supporters, or any other person.  Accordingly, it does not accept that the Applicant was ever involved in any acts of violence in relation to political matters, that he was ever charged or under investigation or subject to legal proceedings for such matter and that he is subject to an arrest warrant or criminal charges in Bangladesh.

24.  The Board does not accept that the Applicant was a person of adverse interest to any person or group at the time he departed Bangladesh in May 2015.  The Board then proceeded to assess his non-refoulement claims on the above basis and found the Applicant has failed to prove the factual basis to entitle him to non-refoulement protection under any of the four applicable grounds under the USM[6].

The legal principles applicable to judicial reviews

25.  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[7].

Grounds for judicial review

26.  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.

27.  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”[8]. 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[9]. 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.

28.  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[10].  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[11]. 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.

29.  In response to the Court’s invitation by letter dated 28 May 2021, the Applicant lodged a six-page written submission.  In the submission, he put forward some legal propositions, repeated the above grounds and the hardship he will face if returned to Bangladesh, in particular under Torture Risk ground and Persecution Risk ground. He repeated his complaint about the Board’s erroneous reliance on COI. There are no additional grounds disclosed in his submission.  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 the other grounds in numerical order.

30.  At the hearing, the Applicant admitted that he wrote the affirmation and submission himself and that he has some working knowledge of the English language.  The grounds of application in the Form 86, the supporting affirmation and his submission were reasonably well-written and reflect that the Applicant has a reasonably good working knowledge of the English language.  He is able to read, write and understand English and express himself adequately in English. 

31.  The Applicant accepted that he understood the documents contained in the hearing bundle before the Board, namely his NCF, record of interview, the Notice and COI, though they were not written in his first language.  However, when asked to particularise his complaints about unreasonableness, irrationality and procedural unfairness, he declined to answer.  He said he had put down his reasons in his affirmation and submission and did not want to say anything else.  He said he would be contented if the Court determines his application on the basis of those documents.

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

32.  In Re Zafar Muazam[12], Re Zunariyah[13], Re Zahid Abbas[14], Re Tariq Farhan[15], and Re Lopchan Subash[16], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v. Sakthevel Prabakar[17] nor the judgment of FB v. Director of Immigration[18] 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.  

33.  Likewise, a claimant does not have absolute right to free language assistance at all stages of the proceedings.  In Re Karamjit Singh[19], 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 convenience.

34.  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 had no problem understanding the documents in the hearing bundle.  The Notice of the Director was issued to him on 8 February 2018.  It was not until 13 September 2018 that the oral hearing was held.  The Notice is in English, though unfortunately no translation was provided.  He cannot expect those documents to be fully translated for him.   He had in between the issue of the Notice and the oral hearing more than seven 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. 

35.  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, non-refoulement claim form 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.

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

Ground (2) – Procedural unfairness

37.  Despite the Court’s request, the Applicant refused to give particulars of his complaint about procedural unfairness.  Doing the best it can, the Court identified two possible basis of his complaint.

38.  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.  He had opportunity to address the Board.

39.  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.

40.  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 for more than seven months before the hearing.  As he had admitted, he had no problem understanding 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.  He also 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 seven 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.

41.  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

42.  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.  He did not give particulars about how the Board unlawfully fettered its discretion.  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

43.  The Applicant refused to give particulars of this ground or identify what he alleged is unreasonable or irrational.  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.  

44.  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.  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 elements in the Decision.  The Decision was utterly without fault.

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

45.  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

46.  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 primarily based on its finding of the Applicant’s incredibility.  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 were substantial grounds to believe that there was 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. 

47.  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; Country Information and Guidance - Bangladesh: February 2015 and Country of Origin Information (COI) Report on Bangladesh dated 31 August 2013 published by the Home Office of the United Kingdom; Transparency International, Corruption Perception Index 2015; Government; 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 would have carefully considered the information and given it such weight as it thought fit having regard to the nature of information, the circumstances the information was obtained etc.

48.  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

49.  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 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] Paragraphs 60 to 90 or pages 14 to 24 of the Decision

[6] Paragraph 98 to 119 or pages 25 to 31of the Decision

[7] [2018] HKCA 524 at [14(1)]

[8] Paragraph 6 of Form 86

[9] Paragraph 7 of Form 86

[10] Paragraph 5 of his supporting affirmation

[11] Paragraphs 4 and 8 of Factual Background in his supporting affirmation

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

[13] [2018] HKCA 14

[14] [2018] HKCA 15

[15] [2018] HKCA 17

[16] [2018] HKCA 37

[17] (2004) 7 HKCFAR 187

[18] HCAL 51 of 2007

[19] CACV 78/2018