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

HCAL 2268/2018

[2021] HKCFI 1075

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2268 of 2018

Application for Leave to Apply for Judicial Review

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

Following;

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

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  The Applicant is a Bangladeshi national.  He last arrived in Hong Kong on 8 August 2015.  On 13 September 2017, he applied for a non-refoulement protection claiming that he will be harmed or killed if returned to Bangladesh as a result of political violence.  In due course, his non-refoulement claim was assessed on all four applicable grounds available under the USM, namely:

(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 (“Torture Risk”);

(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”) (“BOR 3 Risk”);

(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 (“Persecution Risk”); and

(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 (“BOR 2 Risk”).

2.  By a Notice of Decision dated 12 October 2017 (the “Notice”), the Director of Immigration (the “Director”) rejected his claim.  On 25 October 2017, he lodged an appeal to the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) against the decision of the Director.   On 10 October 2018, the Board dismissed his appeal (the “Decision”).  On 19 October 2018, he applied for leave to apply for judicial review against the Board’s Decision.

The Applicant’s case

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

4.  The Applicant joined the Bangladesh Nationalist Party (“BNP”) as an ordinary worker and member since 2005.  He helped to promote the party.  BNP and Awami League (“AL”) were rivalries.  Sheikh Selim was the member of parliament of AL in the area of Gopalaganj.

5.  In 2005, when BNP was holding a football match, the Applicant was hit by a hockey stick on the head by AL members.  He reported to the police.  Some AL members were arrested but were released after a few days.  The Applicant believed it was due to the influence by Sheikh Selim.

6.  The Applicant said that Sheikh Selim hated him on the belief that he was the cause why some people did not join AL.  The Applicant believed that AL targeted him and his partner Tajul Islam.

7.  In 2008, AL came into power.  BNP leaders fled and hid themselves in different places in the country.  The Applicant also fled for his safety.  He was located and assaulted by Sheikh Selim’s people while he was in Mullahaat.  His upper left thigh was injured.  His house was set on fire.

8.  In early 2013, the Applicant’s father told him that his partner Tajul Islam was killed by Sheikh Selim’s people.  Then, the Applicant fled to India where he stayed for two to three days and then returned to Dhaka.

9.  One day in 2014, he was hit by a policeman in Dhaka on the instructions of the Jubo League president, Ajam.  The Applicant was in great fear and fled to Hong Kong.

10.  While in Hong Kong, the Applicant was notified that Sheikh Selim was still looking for him and had filed a false case against him in 2016, accusing him as a terrorist.  In 2017, his friend Shahin was killed.

11.  The Applicant did not expect protection from the police as Sheikh Selim is a very wealthy and politically powerful man.  Also, AL is the ruling party in Bangladesh.  He believed the state would be influenced by AL and would not provide him effective protection.  He did not consider internal relocation possible as Sheikh Selim would be able to locate him.

The finding of the Board

12.  The Board basically accepted the Applicant’s evidence given at the oral hearing before the Board and in the documents he submitted.  But, on those evidence, the Board was not satisfied that his life was at risk because the injuries he suffered during the three attacks were not severe.  The past ill-treatment had not attained a minimum level of severity, suggesting that Sheikh Selim did not have the intention to seriously harm the Applicant.

13.  The Board found that as the Applicant was only holding a small position in BNP, there was no reason for AL party as a whole to target him.  The Applicant provide no evidence that the justice system in Bangladesh would not avail him with fair treatment and would be biased to the influence of Sheikh Selim.

14.  The Board considered the Country of Origin Information (“COI”).  Some COI supported the Applicant’s allegation about police corruption and abuse.  But other COI showed that government had put in substantial efforts to combat corruption and improve police conduct and professionalism.  Some COI reported arrests of police officers who had committed illegal acts showing the Bangladeshi authority would not tolerate any unlawful behaviour committed by an individual as a common practice.  The Board therefore concluded that there is a functional criminal legal justice system in Bangladesh and did not accept the Applicant’s assertion that state protection is unavailable or ineffective.

15.  In respect of BOR 2 Risk ground, the Board was not persuaded that the Applicant would face a personal and substantial risk of his right to life being violated should he be returned to Bangladesh.  The Board as not convinced that internal relocation is an unfeasible option.

16.  In respect of BOR 3 Risk ground, in addition to not being satisfied that the Applicant has been subjected to pain or suffering sufficiently serious to reach the minimum level of severity for it to fall within the scope of BOR 3, the Board was not persuaded that he will face a genuine and substantial risk of being subjected to ill-treatment, if he is returned to Bangladesh.

17.  In respect of Persecution Risk ground, for the same reason, the Board considered the risk of the feared ill-treatment is low and his alleged fear does not fall within the definition of persecution.  Besides, state protection and internal relocation is available to avoid the risk.

18.  In respect of Torture Risk ground, the Board was of the view that the Applicant has failed to establish that there are substantial grounds for believing that he would be subject to severe pain or suffering if he is refouled to Bangladesh.

The applicable legal principles     

19.  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[1].

Grounds for judicial review

20.  On 19 October 2018, the Applicant lodged a four-page affirmation in support of his application.  The essence of his complaint is about lack of language assistance and that the COI relied on by the Board were not officially recognized and were hearsay.

21.  As for his first complaint, he said that the majority of the documents in the appeal bundle were in English and without translation.  He said that due to lack of understanding on what will happen in the hearing he was confused in terms of what was happening.  In Re Zafar Muazam[2], Re Zunariyah[3], Re Zahid Abbas[4], Re Tariq Farhan[5], and Re Lopchan Subash[6], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[7] nor the judgment of FB v. Director of Immigration[8] 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. 

22.  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.  The appeal bundle is basically made up of his non-refoulement claim form, the record of the screening interview and the decision of the Director in the Notice, including the COI.  He certainly knew what were in the non-refoulement claim form and the record of the screening interview.  The Notice of the Director was issued to him on 12 October 2017.  It was not until 11 June 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 eight months to seek assistance from among his own circle.  Indeed, he had access to interpretation services as reflected in his affirmation which was written in English.  Also, he could have sought assistance from the interpreter at the oral hearing.  At the hearing, he expressly adopted all the information contained in the non-refoulement claim form and the record of interview and the Notice of Appeal.  If he was genuinely confused, he should have asked for an adjournment from the Board to enable him to prepare for the hearing.  It lies ill in his mouth to attempt to overturn the result of the hearing on this ground.  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.

23.  As for his complaint about the COI being not officially recognised and made up of hearsay, it is incorrect.  The COI relied on by the Director and the Board are all from credible and official sources, including Country of Origin Information (COI) Report of Bangladesh issued by the United Kingdom Home Office on 31 August 2013; Country Report on Human Rights Practices for 2016 of Bangladesh published by the United States Department of State;  The State of Human Rights in Bangladesh 2013 issued by the Asian Human Rights Commission; The World Factbook – Bangladesh updated on 4 October 2017, issued by the United States Central Intelligence Agency; and newspaper reports. In fact, the Board relied on the COI in accepting his evidence.  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.  The Court considered this ground totally groundless.

24.  As for the overall or general complaint about irrationality and unreasonableness in the Board’s finding, these grounds of complaint are against the finding of facts by the Board.  The Court pointed out that the function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  Having 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 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. 

Conclusion

25.  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 reasonably arguable.  There is no realistic prospect of success.  Accordingly, leave to apply for judicial review is refused.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1

[1]  [2018] HKCA 524 at para 14(1)

[2]  CACV 2/2018, (unreported) 23 March 2018

[3]  [2018] HKCA 14

[4]  [2018] HKCA 15

[5]  [2018] HKCA 17

[6]  [2018] HKCA 37

[7]  (2004) 7 HKCFAR 187

[8]  HCAL 51 of 2007, (unreported) 5 December 2018