HOSSAIN MD JONAYET v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2457/2019

[2025] HKCFI 2339

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2457 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.   Leave to amend the Form 86 is granted; and

2.   Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 26 August 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) “made on an unknown date but notified to Applicant on 15 August 2019”.  In his supporting affirmation, he annexed a copy of the decision of the Board dated 11 July 2019 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 23 May 2018 (the “Notice”), refusing his non-refoulement application.  Hence, the decision in respect of which relief is sought is the decision of the Board dated 11 July 2019 (the “Decision”).  On its own motion, the Court amended the Form 86 to that effect.

Background

2.  The Applicant is a Bangladeshi national.  He sneaked into Hong Kong from the Mainland on 31 December 2015 and surrendered to the Immigration Department on 4 January 2016.  He made a claim for non-refoulement protection on 9 August 2016.  In due course, his non-refoulement claim was 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]. His application was rejected by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision. He now applies for judicial review of that Decision.

The Applicant’s case

3.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by him with legal assistance and the record of his screening interview  in the presence of his lawyer.  In gist, he claims, if returned to Bangladesh, he will be harmed or killed by people of the Awami League (“AL”), because he refused to quit the Bangladesh Nationalist Party (“BNP”) to join the AL.    

4.  The Applicant, now aged 37, was born in Munshiganj, Bangladesh.  He is single. His parents and two siblings are living in Bangladesh. He had received formal education for six years.  He had two years’ experience working in a metal recycling shop in Dhaka and seven years’ experience working as an installation worker for fire sprinkler system and other equipment.

5.  He claimed that he joined the BNP as an ordinary member in 2005.  While working in a metal recycling shop in Dhaka, some unknown AL people frequently went to extort protection money from his employer (“Ali”), who was also a BNP supporter.  Ali argued with the AL people but paid at the end to avoid trouble.  The AL people also threatened him and Ali to leave the BNP and join the AL, if they wished to run their business safely in Dhaka.  They refused.  They did not complain to the police as the police were in favour of the AL.

6.  In early 2008, the harassment escalated because he and Ali had clearly indicated their refusal to join the AL.  One day in March 2008, five to six people wearing face masks and claiming to be AL members broke into Ali’s shop.  The Applicant hid behind the office.  Ali was assaulted by those people with iron rods, hockey sticks and wooden sticks for around 15 minutes.  He heard those people demand a huge sum of protection money from Ali and ordered him to quit the BNP and join the AL, but Ali refused.  Then, one of them killed Ali by firing at least five shots at him.  After those people left, the Applicant went to stay in his sister’s place in Dhaka for a couple of days. He did not report Ali’s murder to the police.  A few days later, some AL people visited his sister’s place to look for him.  His sister lied saying that he had returned to his home village.  Then they left.

7.  On his brother-in-law’s advice, the Applicant went to work in Dubai in June 2008 to avoid the AL people and their threats.  Thinking that everything had returned to normal, he returned to his home village in Bangladesh in October 2015.  But a couple of days later, some unknown AL people visited his home to look for him several times.  Occasionally, they assaulted him at his home or on the street.  In one of the attacks, he recognised the assailants were led by Karim, a local AL leader.  On 12 November 2015, Karim and a group of three to four unknown men and assaulted him for five to seven minutes.  Karim attempted to kill him by stabbing him with a knife which injured his left arm.  The Applicant managed to escape.  He received treatment in a private clinic.  He tried to seek help from the police in his home village, but the police informed him that an arrest warrant for murder had been issued against him.  He believed the warrant was related to Ali’s murder.  So he fled to Dhaka.

8.  While in Dhaka, he learnt that the AL people were actively looking for him both in his home village and around his sister’s place.  Concerned for his safety, he left Bangladesh and came to Hong Kong via mainland China to seek protection.   

9.  The Applicant claims that state protection is not available because the police in Bangladesh are in favour of the AL people.  He does not believe internal relocation feasible, as he believes the AL people could locate him throughout the country through their powerful network.

The finding of the Board

10.  The Applicant testified before the Board. The Board identified multiple and significant discrepancies between his testimony before the Board and his evidence in the NCF relating to Ali’s murder, his being wanted for Ali’s murder, and his being targeted by the AL in 2015 which formed the centerpiece of his claim.  He was unable to give a satisfactory explanation for the inconsistencies.  Hereunder are some examples of the more significant discrepancies.

11.  In his NCF, the Applicant said that the AL people threatened and extorted money from Ali.  However, his testimony before the Board was that whenever the AL people came, they just asked Ali to leave and to fetch tea for them which Ali did; and they never bothered him.  The inconsistency suggested that the Applicant was not present when the demand for money and the threat to quit the BNP and to join the AL were made. 

12.  As for the incident relating to Ali’s murder, the Applicant said in his NCF that he hid in the office, heard the demand, the attack on Ali, the shooting and he left after the AL people had gone.  But in his testimony, he said the AL people told him to leave and he ran away to the main road where he claimed he could still see the shop.  He avoided answering the Board’s question many times as to whether he could hear what was happening in the shop.  Another inconsistent version he gave to the Board was that after Ali was shot, one of the men saw him, chased him and then he started to run.  There were other inconsistencies as to the details of the assault on Ali, such as whether a rope had been tied around Ali’s neck, whether Ali was attacked with iron rods and sticks and whether he heard five shots or two shots being fired.

13.  The Applicant claimed he had been targeted by the AL people upon his return to his home village from Dubai in 2015.  However, prior to his return he had lived in Dhaka for four to five years after the alleged murder of Ali and then spent seven years working in Dubai. In view of his 11 to 12 years’ absence, the Board found it implausible that he would have been targeted by the AL people within just a couple of weeks of his return.

14.  In view of the multiple and significant inconsistencies between his testimony and his evidence in the NCF, the Board found him incredible and his evidence unreliable.   It rejected his evidence including, inter alia, that he was a BNP member, that he was a witness to Ali’s murder, that he was harassed or assaulted by AL members including Karim upon his return to Bangladesh in 2015, and that there was an arrest warrant issued against him. 

15.  On the basis of objective country of origin information (“COI”), the Board accepted that ordinary members of opposition parties including BNP who do not engage in political activities faced a low risk of harm.  Given his lack of involvement in BNP for over a decade, and even if the Applicant would be actively involved in BNP upon his return to Bangladesh, his involvement would only be minimal and at low-level, his risk of facing any of the proscribed harm would therefore be low.  The Board found that there could not possibly be any substantial grounds for finding that he would face any real risk of ill-treatment, if refouled to Bangladesh.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claims for non-refoulement protection under any of the applicable grounds under the USM.  Hence, it dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

16.  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[5].

Grounds for judicial review

17.  At the hearing, after the legal principles in the preceding section had been explained to him, he confirmed that he had no complaint about error of law, procedural unfairness or irrationality.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

18.  However, in his Form 86, the Applicant advanced the following four grounds of review:

(1)  The Board had unlawfully fettered its discretion by refusing her appeal on the grounds that she did not satisfy the requirement;

(2)  The Board acted in a procedurally unfair manner in dealing with her appeal;

(3)  The Decision is irrational; and

(4)  The Board failed to meet the greater care and duty owed to an unrepresented litigant.

In his supporting affirmation, he made the following complaints, which can be regarded as grounds of review:

(5)  The Applicant was not legally represented in the appeal hearing before the Board;

(6)  The hearing bundle and the Director’s revised skeleton submission were given to the Applicant just a few days before the appeal hearing; 

(7)  The majority of the documents in the bundle were in English;

(8)  The Board notified him of the Board’s Decision only in writing and not by telephone, despite his request;     

(9)  The Applicant was confused at the hearing because the hearing bundle was delivered late;

(10)  The Applicant answered all the questions honestly and it was unfair that the Board found his credibility questionable;

(11)  The Board relied significantly on source of news which is not officially recognised or is simply hearsay or outdated leading to the Board making speculations that it is safe for him to return to Bangladesh;

(12)  It is unfair to give the Decision on the BOR 2 Risk ground without even being screened by the Immigration Department;

(13)  There are many more unacceptable and unexplainable grounds to refuse his appeal.

(14)  The Director and the Board rejected his claim without any proper inquiry and without carefully understanding his situation.

Discussion

19.  In respect of Ground (1), the Board gave full reasons for its Decision. It found the Applicant incredible and his evidence unreliable.  In short, it found the Applicant had failed to establish the factual basis to support his claim for protection under any of the four applicable grounds under the USM. This is not a case where the Board made a finding of fact without any evidential basis.  On the facts as found by the Board, it could only reject his claim as a matter of law.  The Board has no discretion to allow his claim if he has not made out his claim.  There is no substance in this ground.

20.  Grounds (2), (3) and (4) are general and bare assertions with no particulars.  At the hearing, after the legal principles in paragraph 16 had been explained to him, he confirmed he had no complaint about errors of law, procedural unfairness and irrationality in the Decision. There is no substance in this ground.

21.  In respect of Ground (8), the Board has no duty to inform an appellant of its Decision by telephone.  In the interest of clear documentation, written communication, such as posting a hard copy of the Decision to the Applicant, is the preferred means of communication.  

22.  In respect of Grounds (10) and (14), they are direct challenges of the finding of fact of the Board, which is not permissible, save for errors of law, procedural unfairness, or irrationality in the Decision.  These matters will be explored in the Court’s overall scrutiny of the Decision.

23.  As for Ground (11), the source of news mentioned under this ground must be the COI.  The Board accepted on the basis of the COI that the risk of harm to ordinary members of opposition parties including BNP who do not engage in political activities faced a low risk.  This is a finding of fact which the court in a judicial review may not interfere save for errors of law, procedural unfairness or irrationality in the Decision.  The COI are from credible and authoritative source.  There is nothing to suggest that the Board erred in law or committed procedural unfairness in accepting the COI or its decision in accepting the COI was irrational.

24.  As for Ground (12), the Director in his Notice explicitly stated that the Applicant’s claim for non-refoulement protection was assessed under all applicable grounds under the USM including the BOR 2 Risk in paragraphs 3, 8 to 10, and his decision to reject his claim under the BOR 2 Risk in paragraphs 23 to 25.  The screening interview covered all four grounds, including BOR 2 Risk ground. 

25.  As for Ground (13), no particulars were given as to what were the more unacceptable and unexplainable grounds on which the Board based its Decision to dismiss his appeal.  At the hearing, he confirmed he had no complaints about errors of law, procedural unfairness, or irrationality in the Decision.

26.  Under Ground (5), the Applicant complains about lack of legal representation in the hearing of the appeal before the Board.  The high standard of fairness requires that a claimant for non-refoulement protection must be provided with adequate legal assistance.  But that high standard does not require that he be provided with legal assistance throughout the entire non-refoulement procedures.  It was held by the Court of Appeal in Re Zafar Muazam[6], Re Zunariyah[7], Re Zahid Abbas[8], Re Tariq Farhan[9], and Re Lopchan Subash[10], that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar[11] nor in the judgment of FB v. Director of Immigration[12] 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 extent of assistance depends on the individual circumstances, such as complexity of the case in terms of fact or the law; and whether minor claimants are involved.  Usually, the high standard is attained if the claimant is provided with legal assistance at the initial stage which is the most important stage of the non-refoulement process.  It includes an initial consultation in which the law relating to non-refoulement protection is explained to the claimant and instructions are taken from him as to the facts of his claim, assistance in the completion of the non-refouleement claim form and legal representation at the screening interview.  During the screening interview, the claimant participates in the joint endeavour with the immigration officer in establishing his claim for protection and his legal representative presents his claim to the immigration officer and makes submissions on the law and the fact on his behalf.  Thereafter, legal representation in the appellate proceedings are of less importance for this purpose because all benefits that legal assistance and legal representation could have afforded the claimant are contained in the written submissions, the NCF and answers in the screening interview given under legal advice.  Unless the legal representative advises appeal, the legal assistance stops.  In view of the limited resources available, legal assistance could only be provided with reasonable proportionality.  Public funds could not provide legal assistance for subsequent appellate proceedings which the claimant’s own legal representative does not recommend.  The high standard of fairness is deem attained under such circumstances.  If the claimant wishes to proceed further, he may do so on his own.  All the benefits that legal representation could have afforded him are contained in the hearing bundle before the Board.  His interests are taken care of by an independent board, the law and the high standard of fairness.  He would not be prejudiced due to lack of legal representation.

27.  As for his complaint under Ground (7) that the hearing bundle is in English, the Applicant is in effect complaining about lack of language assistance.  As a matter of law, a claimant is not entitled as of right to language assistance at any time whenever he wants it.  In Karamjit Singh[13], the Court of Appeal held 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 a claimant 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 native language for his benefit as and when he requires.  He has to use his own resources or find assistance himself from among his friends and his ethnic community.  In addition, he has seven years’ experience working in Dubai.  He must have a working knowledge of the English language. 

28.  Furthermore, the hearing bundle is basically made up of his NCF, the record of his screening interview, the Director’s Notice, his notice of appeal and the COI.  The Applicant knows what is contained in his NCF which was filled in by him with the assistance of an interpreter and the Duty Lawyer Service (“DLS”).  He knows what is contained in the record of screening interview that he attended with the assistance of an interpreter and legal representation.  The record had been read back to him in his own language, and he signed to acknowledge that he understood and agreed with its contents and that no amendment was necessary.  He knows what is written in his notice of appeal prepared by himself.  Recognizing the limitation in his foreign language ability and the importance of his claim, he ought to have taken notes, at least very brief ones, whenever appropriate to remind him of what he had said or written rather than relying on the host country to provide him with the convenience of interpretation at his fingertips.  The Notice and COI are in English and unfortunately have not been translated.  The DLS had most probably discussed the contents of the Notice and COI with him when representing him before the Director.  As mentioned above, he should not do nothing and expect the host country would translate the documents to him as and when he requires. He has to rely on his own means and resources or find assistance himself from among his friends and his ethnic community.

29.  In Grounds (6) and (9), he complained that he was confused, as the hearing bundle was delivered late and he was not provided with language assistance.  He gave no particulars, not to mention evidence, as to when he was served the hearing bundle.  Usually, the bundle is delivered within ten to fourteen days before the hearing.  But most importantly, it must be noted that he must have received the Notice on or before 1 June 2018, the date on which he filed his notice of appeal, which is more than nine months before the hearing before the Board.  The Notice must have been explained to him by the DLS then representing him.  As explained above, he must have knowledge of all the documents in the hearing bundle, such as his NCF, the record of screening interview, the notice of appeal etc.  His language difficulty is exaggerated and unreal.  It therefore lies ill in his mouth to say he was confused.

Overall scrutiny

30.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board analysed the evidence carefully, tested it against common sense and inherent probability.  It found the Applicant an incredible witness. It gave full reasons for its finding.  It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

31.  In conclusion, on the Court’s own motion, the Form 84 is amended by properly identifying the decision in respect of which relief is sought and the leave application as amended 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 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 23 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 524 at [14(1)]

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

[7] [2018] HKCA 14

[8] [2018] HKCA 15

[9] [2018] HKCA 17

[10] [2018] HKCA 37

[11] (2004) 7 HKCFAR 187

[12] HCAL 51 of 2007

[13] CACV 78/2018