MD ZIBAN v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMNT CLAIMS PETITION OFFICE

HCAL 2751/2018

[2021] HKCFI 1970

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2751 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 27 November 2018 (the “Decision”).

2.  The Applicant is a Bangladeshi national.  He sneaked into Hong Kong on 15 September 2012.  He was arrested by the police on 22 December 2012 and referred to the Immigration Department.  He lodged a non-refoulement claim on 5 February 2013.

3.  In due course, his non-refoulement claims were assessed on all four applicable grounds then available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 2 Risk[2]; BOR 3 Risk[3]; and Persecution Risk[4].

4.  By a Notice of Decision dated 13 November 2017 (the “Notice”), the Director of Immigration (the “Director”) rejected his claims. On 23 November 2017, he appealed against the decision of the Director in the Notice to the Board.  His appeal was dismissed by the Board’s Decision dated 27 November 2018. 

5.  The Applicant now sought leave to apply for judicial review of that Decision.  He requested an oral hearing if his application for leave is not granted on paper.  Two oral hearings have been scheduled for him on 16 and 29 June 2021.  He did not appear on both occasions. Attempts had been made to contact him by telephone on both occasions.  He could not be reached.  Having considered the available documents, in particular his grounds of application and affirmation, the Court considered this application may be disposed of on paper and made the following decision.

The Applicant’s case

6.  The Applicant’s case as advanced by him in his non-refoulement claim form (“NCF”) prepared by him with assistance of the Duty Lawyer and supporting documents dated 18 September 2017 is as follows.

7.  He was born a Sunni Muslim.  Since 1991, he attended the party office of Bangladesh Nationalist Party (“BNP”) and joined public rallies when he was free.  He was an active supporter and took a leading role in clashes and fights.  Though he did not hold any position in BNP, he soon became a famous figure in the locality. 

8.  In 1994, the mayor of Brahmanbaria Municipality who was also an Awami League (“AL”) leader filed several cases of extortion, plundering vandalism and arson against him and his family.  As BNP was in power, the cases were not processed.  In 1996, AL won the election and became the ruling party.  The mayor harassed the Applicant’s family a few times.  The Applicant’s family moved to Dhaka to seek protection of his uncle who served in the army, while the Applicant stayed behind to handle the matter.  In early 1997, his house was set on fire and burned down. He dared not report to the police as AL was in power and the cases against him were still suspended.

9.  In March 1997, the cases were activated.  He was arrested and tortured by the police.  Upon plea bargaining, he admitted to arson while the other charges were dropped.  He was discharged from prison on 2 February 1999.  He sought advice from Harun who was an Ahmadi and member of the parliament.  Harun advised him to leave Bangladesh to avoid being further harmed by AL.

10.  In the following month, he was hit by a motorcycle driven by an AL member who had been beaten up by BNP members before.  When the driver left, he said he would return to hit the Applicant again in two minutes.  The Applicant went to the hospital for treatment and then lodged a complaint with the police.  The police refused to accept his complaint.  He then went to Dhaka to stay with his family.

11.  While in Dhaka, the Applicant learned from his uncle that his elder sister had been disowned by the family but was currently in town to take care of the school she had founded. He visited her secretly and learned that she had converted to Ahmadiyya Islam. Under her influence, he was converted to become an Ahmadiyya Muslim as well. He travelled to Chittagong and other places to visit the Ahmadiyya religious centres and also to avoid being hunted down by AL.  In November 1999, he returned to Dhaka City.  His family was furious when they learned that he had been converted.  His family disowned him.  His wife divorced him and took their children to live with her parents. 

12.  The Applicant went to live with his elder sister.  The local Ahmadi community arranged and paid for his passage to Saudi Arabia so as to hide away from AL.  He lived in various offices of Ahmadiyya in Riyadh, Alaiya and Morsala supporting himself from his savings as he had inherited a sum and a piece of land from his family which he had sold.

13.  In the summer of 2001, the Applicant returned to Bangladesh with a view to attend to his father’s funeral.  But his family did not allow him to attend.  He sought advice from Harun, who advised him to leave his home area to avoid conflict.  Thus, he moved to Dhaka and lived in Ahmadiyya office in Brahmanbaria City.

14.  BNP came to power in 2002.  All outstanding charges including extortion, plundering and vandalism against him were again suspended (This is inconsistent with his evidence that those charges were dropped through plea bargaining).

15.  In late 2006, the care-taker government took office and all the pending cases previously suspended by BNP were reactivated (This is inconsistent with his evidence that those charges were dropped through plea bargaining).  Police started to look for him in his village.  His photographs were circulated in the area and appeared in the newspaper.  Fearing that he may be arrested, the Ahmadiyya community sent him to Dubai on a tourist visa in 2008.  In Dubai, the Applicant engaged himself solely on religious studies.

16.  The Applicant had to return to Dhaka in 2010 when his visa could no longer be extended.  He stayed in Ahmadiyya office for several months.  He was told that due to religious discrimination, around 200 Ahmadiyya followers were being targeted and harassed by a religious group named Hefazat-e-Islam.  He was sent to different places and eventually to Mainland China on 13 September 2012.  From there, he sneaked into Hong Kong.

17.  While in Hong Kong, he was told by the member of parliament not to return to Bangladesh as his photographs had been circulated and he was wanted by the authority.  He also learned that his brother had come to Hong Kong to seek non-refoulement protection.  But his brother was not willing to update him about the family.

The finding of the Board

18.  The Board had significant concerns about the veracity of the Applicant’s claims and evidence in numerous respects relating to the narrative timeline including with respect to the timing and duration of his imprisonment in the late 1990s, the timing of some of his overseas travel, the timing of his marriage and the birth of his children, and when the member of parliament, Harun, is said to have been put in jail.  Of particular concern, the Applicant was unable to explain in any coherent fashion why, if there had been outstanding charges against him, they would not have been dealt with by the government when AL was in power and his other charges were dealt with.   It was also his evidence that those other charges were dropped in the process of plea bargaining.  This claim, including the detail that he was wanted by the authorities and pictures of him were posted at the airport, is at odds with the ease with which he appears to have been able to both depart and re-enter Bangladesh, as well as to obtain passports and other travel documents both in Bangladesh and at its overseas posts.

19.  Despite repeated undertaking to produce documentary evidence, the Applicant failed to do so.  He made repeated references to Harun, significant BNP leader and member of the parliament who was put in jail.  He was initially unable to produce any evidence to support the existence of this supposedly prominent person whom he claimed to have been close and was put in jail.  When he eventually produced evidence of Harun, it was found that he had his name wrong.  Despite the Board’s effort to verify this person is who the Applicant claimed him to be, the Board was unable to find any evidence to support the Applicant’s claim that he is an Ahmadi and is currently in jail.  The Applicant was unable to reconcile the Islamist leading tendencies of BNP with Harun’s membership of Ahmadi faith which many BNP people would view as heretical, not to mention their more hard-line coalition partners such as Jamaat-e-Islami.  The Board was also not satisfied with the Applicant’s refusal to engage with this issue when it was put to him.

20.  The Applicant raised new claims about attacks on him which were not mentioned in his NCF.  He also raised new allegations that he was attacked in Hong Kong on a number of occasions by members of Jamaat-e-Islami sent from Bangladesh to harm him.  The Board found the Applicant was shifting in his evidence.  He could offer no explanation why Jamaat-e-Islami would even know of his presence in Hong Kong, let alone consider him to be of such importance that they would see fit to send people here just to harm him.  The Board considered his evidence inherently improbable.  The Board did not find him a credible witness. 

21.  The Board accepted that the Applicant had some historic involvements in BNP; was detained and mistreated by the police in around 1997; jailed for a period and his house was burnt down around that time; that he was deliberately hit by an AL member on a motorcycle following his release from jail; and that he was converted to Ahmadi faith.

22.  However, the Board did not accept he faces any outstanding criminal charges relating to his past activities with BNP; that he was wanted by the authority; and that wanted posters of him were circulated or posted at the airport.  It did not accept the Applicant’s claimed on-going support of BNP.  The Board found he is no longer a bona fide supporter of BNP and given his lack of involvement in BNP for almost two decades, the Board does not accept he would be perceived by the current administration in Bangladesh or even by local AL supporters as a political opponent or targeted and harmed for that reason if he were to return to Bangladesh now or in the reasonably foreseeable future. 

23.  The Board did not accept he has ever experienced any serious or significant problem either in Bangladesh or in Hong Kong for reason of his Ahmadi faith, whether from the Bangladesh authorities, political opponents in AL, or Islamist opponents of Ahmadis.  The Board does not accept that there is more than a remote prospect of the Applicant experiencing serious or significant harm if he returns to Bangladesh and to his Ahmadi community. 

24.  Consequently, the Board found there is no factual basis to support his claim for non-refoulement protection on any of the four applicable grounds.

Grounds for judicial review

25.  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.

Ground (1) – Unlawful exercise of discretion

26.  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

27.  The basis 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, he was served the bundle six days before the hearing and did not have sufficient time to prepare for the hearing due to his limited skills in English and he being unrepresented. 

28.  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.

29.  Similarly, a claimant does not have absolute right to free language assistance at all stages of the proceedings.  In Re Karamjit Singh[12], 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 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.

30.  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 and served on him six days before the hearing, 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 Country of Origin Information (“COI”).  He knew what is contained in the bundle.  The Notice of the Director was issued to him on 13 November 2017.  It was not until 30 May and 25 July 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 six to eight 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. 

31.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation or interpretation in the process before the Board.  His complaint about lack of legal and language assistance is over-exaggerated. 

32.  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.  The Board only referred to COI relating to attacks on Ahmadis which is supportive of the Applicant’s case.  It had discussed the information with the Applicant.  The COI relied on by the Director and the Board are all from credible and official sources, including Country Reports on Human Rights Practices for 2016 published by the United States Department of State; The World Factbook, published by United States Central Intelligence Agency; Country of Origin Information Report on Bangladesh dated 31 August 2013published by 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. 

33.  The Court considered the complaint about procedural unfairness is absolutely groundless.

Ground (3) – unreasonableness and irrationality

34.  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[13].

35.  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 her burden of proving her fears and risks. These are findings 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

36.  The Applicant did not particularise 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

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

[3]  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”)

[4]  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

[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] CACV 78/2018; [2018] HKCA 460

[13] [2018] HKCA 524 at para 14(1)