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

HCAL 2816/2018

[2021] HKCFI 1497

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2816 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 Director of Immigration (the “Director”) dated 31 October 2018 (the “Notice”) and the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) of an un-particularised date.  The Court found out on its own inquiry that the Applicant had appealed to the Board against the decision of the Director in the Notice; that his appeal was dismissed by the Board on 3 December 2018 (the “Decision”); and that is the only decision made by the Board relating to the Applicant.   Hence, the Court identified that decision as the Decision in respect of which the Applicant seeks to apply for judicial review.

2.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures.  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. For the benefit of the Applicant, the Court treated his complaints against the Director as directed at the Board also.

3.  The Applicant is a Bangladesh national.  He flew from Bangladesh to Guangzhou on 1 January 2015 and then sneaked into Hong Kong.  He surrendered to the Immigration Department and sought non-refoulement protection claiming he was at risk of being harmed or killed as a result of being a target of political violence. 

4.  In due course, his non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5] grounds.  By the Notice dated 31 October 2017, the Director rejected his claims.  On 10 November 2017, the Applicant filed his Notice of Appeal to the Board.  His appeal was dismissed by the Board on 3 December 2018.  He now seeks leave to apply for judicial review of the Decision of the Board.

5.  The Applicant did not specifically ask for an oral hearing.  He had clearly set out his grounds for application.  Having reviewed the available documents, the Court was satisfied that the application could be determined on paper without a hearing.

The Applicant’s case

6.  The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form and written submission which were prepared by him with assistance of the Duty Lawyer Service. 

7.  The Applicant was a supporter of the youth wing of the Bangladesh Jatiotabadi Jubodol of the Bangladesh Nationalist Party (“BNP”).  With his active participation, he was promoted to the position as General Secretary of the youth wing of the BNP in around 2014. His main duties included promoting BNP and gathering people to join party meetings.  He gained popularity in the area. 

8.  Before the general election in January 2014, Arif from the student wing of the Awami League (“AL”) called him and threatened that he should either quit the BNP or leave the country otherwise he would be beaten to death.  For his safety, he applied for a visa to visit China.  At the beginning, he ignored the threats, but then the threats escalated in frequency.  He fled to Dhaka.  Still, he received 8 to 10 threats from AL people between January and October 2014.

9.  There was a protest against AL on 5 January 2014 in which a lot of people, including the Applicant, were beaten up by AL leaders and the police.  The Applicant was hospitalised in Munshigonj Sadar Hospital for two or three days.  Later, he came to know that a false case of fighting had been filed against him by the police.  A few days later, he received a phone call from Arif threatening him to leave the country otherwise he would be killed or arrested by the police for the forged case.  In view of the danger, he fled to China on 1 January 2015.

10.  The Applicant maintained contact with his wife and learned that Arif was still sending people to his home to check if he has returned.  The police also looked for him and the court issued a warrant for his arrest in mid-2014.

11.  The Applicant said it is not possible to relocate to other parts of Bangladesh as he does not have friends or relatives to offer him shelter in the long term and the police will not protect him from AL because they side with AL which is the ruling party.

12.  In his notice of appeal to the Board, the Applicant set out a number of mistakes made by the immigration officer in the Notice as grounds of his appeal to the Board.

The finding of the Board

13.  The Board did not accept the Applicant’s evidence as set out in his non-refoulement claim form. Accordingly, it was not satisfied that the Applicant has discharged the burden of proving his factual case on which his non-refoulement claims were based.

14.  The Applicant appeared in person before the Board on 15 October 2018.  He was assisted by an interpreter qualified in the Bengali and English languages.  He told the Board that he wished to rely on his written submission and did not want to participate in the hearing as he was feeling unwell and depressed because of his family’s and his situation.  The Board indicated it had questions to ask of the Applicant and discussed a postponement, but the Applicant reiterated that he wanted to rely on the information already available to the Board.  After confirming his personal particulars, the Board asked why he could not return to Bangladesh and who he feared.  The Applicant referred the Board to his appeal statement and to his written submission in his original claim.  As he was reluctant to discuss his application in person, the Board concluded the hearing and considered his appeal on the basis of the available information before the Board.

15.  The Board reminded itself of the legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof, in particular the relatively low standard which a non-refoulement claimant has to discharge.  It referred to the relevant part of UNHCR Handbook on the Procedures and Criteria for Determining Refugee Status which sets out an asylum seeker’s obligation in assisting the decision maker in ascertaining and evaluating the facts in support of his non-refoulement claims.  These obligations include:

(1) To tell the truth and assist the examiner to the full in establishing the facts of his case.

(2) To make an effort to support his statements by any available evidence and give a satisfactory explanation for any lack of evidence.  If necessary, he must make an effort to procure additional evidence.

(3) To supply all pertinent information concerning himself and his past experience in as much detail as is necessary to enable the examiner to establish the relevant facts.  He should be asked to give a coherent explanation of all the reasons invoked in support of his application for refugee status and he should answer any questions put to him.

16.  The Board acknowledged that the Applicant’s burden is only to prove his case to a relatively low standard.  However, that burden cannot be discharged merely by making a set of limited written assertions which are untested and which contain insufficient details and inconsistencies.  As the Applicant refused the Board’s invitation to participate in a joint endeavour to prove his case by answering questions raised by the Board, the Board concluded that no weight could be attached to what he said in his non-refoulement claim form and written submissions which are essentially mere assertions.

17.  The Board identified a number of serious concerns in the Applicant’s case.  The first one is the timing of his application for passport and visa to visit China.  That was in November 2013 prior to his claimed appointment as the General Secretary of the youth wing of the BNP.  These applications were made before he received the threats from Arif.  The Board has questions as to the Applicant’s reasons for making the application at the time.  The Applicant produced a letter purporting to be from the president of his branch of this organisation.  The Board has questions as to the identity of the writer of this letter, the Applicant’s claimed position in the organisation, his involvement or commitment to the group, why he joined, his knowledge of BNP politics and the general political situation in the timeframe he has referred to.

18.  Second, the Board had concerns about the sequence of events alleged by the Applicant, the nature of the threats he claims to have received, the frequency of those threats prior to his being appointed General Secretary and after, whether he did indeed have any face to face encounters with people he claimed were threatening him, his reasons for the flight after the protest, details of how he could be identified by the police as having participated in the protest, the reasons for his being targeted and whether anyone else in the BNP youth wing was targeted and allegedly falsely charged with offences for the January 2014 protest.

19.  Third, the Board had concerns about the reasons the Applicant had submitted documents, namely the arrest warrant which related to charges against him which do not refer to the January 2014 protest but to another event in April 2015.

20.  Fourth, the Board had concerns how he managed to live in Dhaka from around January incident; and why he could have no problem leaving the country when a warrant for his arrest had been issued.

21.  Having considered the above, the Board came to the conclusion that the Applicant has failed to prove there is a real risk that he would face any of the proscribed forms of harm should he return to Bangladesh.  The Board said in paragraphs 83 to 86:

“83. Without further information, the Board is not satisfied the [Applicant] has established any of the facts he has asserted.

84. The Board has also considered the appeal statement submitted by the [Applicant] and finds this does not materially alter any of the conclusions reached as there was insufficient evidence adduced to confirm any of the claims.

85. For the above reasons, having carefully assessed the limited information available about the [Applicant’s] claims, the Board rejects them, both individually and cumulatively in their entirety.

86. In light of the findings above, the Board considers there is not a real risk the [Applicant] would face any of the proscribed forms of harm should he return to Bangladesh.”

Grounds for judicial review

22.  The Applicant advanced the following grounds in support of his application for leave to apply for judicial review:

(1) the Applicant was not educated;

(2) no lawyer was provided to him for advice;

(3) the Board did decide the case on assumption, even without considering many serious evidence provided; and

(4) reversal of the Decision of the Board and Director of Immigration as they both infer no case in the absence of another evidence.

23.  As for the first ground, the fact that the Applicant is uneducated is a disadvantage in that he may not fully understand the law and his rights.  But that as such is not a ground for appeal unless as a result he did not have a fair trial or that his disability was taken advantage of by the decision maker.  Having rigorously examined the Director’s Notice, the Board’s Decision, the non-refoulement claim forms and all the available documents with anxious scrutiny, the Court was unable to find the slightest suggestion that the Director or the Board had taken advantage of his disability.  He was provided with an interpreter qualified in the Bengali and English languages.  The Board explained to him there were issues which the Board wanted to discuss with him relating to his case.   The Applicant said he did not wish to answer the questions to be raised by the Board because he said he was unwell.  The Board offered him an adjournment.  He refused and affirmatively insisted to rely solely on what he had submitted in writing and refused to answer questions.  The Board was satisfied that the Applicant understood his rights and exercised his option.  Respecting his wish, the Board had him to confirm his identity and the truthfulness of the documents he relied on.   Then, the Board undertook a joint endeavour with the Applicant by relying on his documents and written submissions to assess his fears and risks.  The Board reminded itself of the applicable legal principles, the burden of proof and standard of proof, and considered all the applicable grounds under the USM.  The Court was satisfied that the Applicant was in no way disadvantaged by his lack of education.

24.  As for the Applicant’s complaint about lack of legal representation before the Board, the fact is he had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter in preparing his non-refoulement claim form and at the screening interview.  All the benefit that legal representation could have afforded him is contained in his written submissions and non-refoulement claim form presented to the Director, which were also presented to the Board.  He also had the services of a qualified interpreter at the oral hearing before the Board.   Despite he was not legally represented at the oral hearing before the Board, all the benefit which legal representation could have afforded him was before the Board.   In Re Zafar Muazam[6], Re Zunariyah[7], Re Zahid Abbas[8], Re Tariq Farhan[9], and Re Lopchan Subash[10], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[11] nor 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. 

25.  As for his complaint that the Board decide the case on assumption, even without considering many serious evidence provided by him, this is not true.  As mentioned in paragraphs 14 to 16, the Board had directed its mind to the legal principles and its duty to undertake a joint endeavour with the Applicant to assist him to prove his case.  The Applicant’s so called “serious evidence” is just his own unsupported assertions.  The Board tried to ask questions of the Applicant which if properly answered might remove ambiguities and doubts and boost his case of risks and fears.  But he refused.  The Board’s Decision was not based on assumption but on the Applicant failing to discharge his burden of proof even to the relatively low standard.  There is no substance in this ground.   

26.  The Applicant’s last ground is just an appeal against finding of facts by the Board.  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[13].

27.  Having rigorous 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 relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  It gave clear reasons for its findings summarized in paragraphs 16 to 21 above.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds.  The Board’s Decision was utterly without fault. 

Conclusion

28.  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 claim is not reasonable 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] [2018] HKCA 549

[2] 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

[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] risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[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, (unreported) 5 December 2008

[13] [2018] HKCA 524 at para 14(1)