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

HCAL 826/2019

[2021] HKCFI 1882

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 826 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:

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”) in his Notice of Decision dated 27 June 2018 (the “Notice”), the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 15 March 2019 (the “Decision”); his Non-refoulement Claim Form dated 18 May 2018 (“NCF”) and his Record of Screening Interview on 14 June 2018.

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  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1].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.  The Record of Screening Interview is a transcript of the Applicant’s answers to the questions raised by the immigration officer during the interview.  The NCF is the application form issued by the Immigration Department but filled in and completed by the Applicant for his application for non-refoulement protection.  These two documents are not decisions of any administrative body.  They are not reviewable by judicial review. 

3.  The Applicant is a Bangladeshi national.  He claimed to have sneaked into Hong Kong from the Mainland on 5 February 2017.  He surrendered to the Immigration Department on 8 February 2017.   He lodged a non-refoulement protection application by written representation on 9 April and 10 May 2017, claiming that he will be harmed or killed by members of the Awami League (“AL”) if returned to Bangladesh because of his political opinion.

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].  By a Notice of Decision dated 27 June 2018, the Director rejected his claims.  His appeal to the Board against the decision in the Notice was dismissed by the Board’s Decision dated 15 March 2019.  He sought leave to apply for judicial review of the Decision of the Board. 

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in his  NCF which was prepared by him with assistance of the Duty Lawyer Service. 

6.  The Applicant is an active member of the Bangladesh Nationalist Party (“BNP”).  His father was the Promotional Secretary of BNP at the police level, which was a high position. After his father’s death, he was elected the Secretary-General of Jubo Dal, the youth wing of BNP in 2008.  He devoted nearly all his time for Jubo Dal at the police station level.  In that position, he attracted attention of AL.

7.  AL is a bitter political rival of BNP.  In 2010, the leader of AL demanded BNP leaders for money.  He was asked to pay BDT 1 million and threatened with death if he failed to pay.  He was threatened by five AL people that either he pays or he leaves the country.  In mid-2010, he and his family moved to Dhaka to avoid harassment and threats.  Seeing the continuing political violence throughout the country, he decided to flee Bangladesh.  He flew from Dhaka to Guangzhou on 23 February 2016 and stayed for almost a year before sneaking into Hong Kong.

The finding of the Board

8.  The Board did not find the Applicant an impressive witness.  Whenever he was unable to give a satisfactory answer to the Board’s question, he just avoided answering by saying that he had given his words to the Hong Kong Government that he would return if his party came into power; that his opponents are looking for him; and that he requested the Board to consider his case and not to send him back to Bangladesh or he will be killed.  The Board found him evasive and did not believe his evidence.

9.  According to his evidence before the Board, his position as the Secretary-General of Jubo Dal at the police station level was the lowest level in Jubo Dal which was only a sub-division of BNP.  The Board considered him to be exaggerating when he claimed in that position overseeing only a few villages he attracted attention from AL.  The Board also doubted his claim of being demanded BDT 1 million by AL because in his low position in Jubo Dal at the police station level he could not rank pari passu with BNP leaders.  His financial condition was known to the villages and given the fact that he did not have a full time job and being the Secretary-General of Jubo Dal at the lowest level, the Board doubted his allegation that he would be demanded such a huge sum of money.

10.  He was evasive when asked about what sort of harassment and violent torture he was subjected to, he just repeated his speech of the words he said he had given to Hong Kong Government.

11.  But even assuming his case was true, nothing happened to the Applicant during the six years he stayed in Dhaka.  The Board considered his stay in China for almost a year inconsistent with someone who really wanted to seek non-refoulement protection.  It also found state protection and internal relocation available options to prevent or avoid the harm.

12.  In gist, the Board did not believe his evidence.  The Board was not satisfied that his fear and risk were genuine and meet the specific criteria required under the four applicable grounds under the USM.  There was therefore no factual basis to support his claim to non-refoulement protection under any of the four applicable grounds.  Furthermore, and in any event, the Board was satisfied that state protection and internal relocation available options to prevent or avoid the harm.

Grounds for judicial review

13.  The Applicant filed a 12-page affirmation dated 26 March 2019 in support of his application. The thrust of his complaint is procedural unfairness.  His arguments revolve around:

(1)  lack of legal and language assistance in prosecuting his appeal before the Board;

(2)  the weight given to conflicting information in the Country of Origin Information (“COI”) by the Director; and

(3)  the Director did not properly address the issues and just made an assessment on templet basis

Legal and language assistance

14.  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.  The real question is whether the claimant is prejudiced for want of legal and language assistance.

15.  The Applicant had the benefit of legal representation in preparing his NCF, in attending the screening interview and presenting his case to the Director.  He had no complaint about lack of legal assistance up to that stage.  His complaint is that he had no legal assistance thereafter to assist him in understanding the reason in the Notice for refusing his application and preparing his notice of appeal to the Board.  However, all the benefits that legal representation could have afforded him are contained in his written submissions, his NCF and his answers in the screening interview given under legal advice.  All these had been presented to the Director, which were then presented to the Board.  He also had the services of a qualified interpreter at the oral hearing before the Board to assist him in presenting his appeal.   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.  He suffered no prejudice due to lack of legal representation before the Board. 

16.  In Re Karamjit Singh[13], 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 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 first language for his benefit.  He has to find assistance himself from among his friends and his ethnic community.  Indeed, the Applicant was able to file an adequately well written notice of application for leave to apply for judicial review in English himself.  As for his complaint about the interpreter not being helpful and scolding him, it is all speculation on his part.  He gave no particulars.

17.  The Applicant argued that it was procedurally unfair because the appeal bundle is written in the English language which he is not familiar with.  Be that as it may, the appeal bundle is basically made up of his NCF, the record of his screening interview, the Notice of Decision of the Director and the COI.  He knew what was contained in his NCF which was filled in by him with the assistance of an interpreter and the Duty Lawyer Service.  He knew what was contained in the Record of Screening Interview which he attended with the assistance of interpreter and legal representation.  The record had been read back to him and he signed to acknowledge that he understood and agreed with the contents and that no amendment was necessary.  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, to remind him of what he had said or written rather than relying on the host country to provide him the convenience of interpretation at his fingertips.  The Notice including the COI were issued by the Director on 27 June 2018.  The hearing of the Board was held on 26 February 2019.  In between, he had eight months to seek assistance from within his circle and means.  He has the burden of proving his non-refoulement claim.  He cannot do nothing but to leave it to the host country to prove his case for him simply because the documents were not written in his first language.  It lies ill in his mouth to say that for all these months he did not have sufficient time to prepare for his appeal.

18.  When the above were put to the Applicant at the hearing, he agreed there was no unfairness.

Weighting given to conflicting information in the COI

19.  The COI relied on by the Director and the Board are all from credible and official sources, including Country Report on Human Rights Practices for 2017 published by the United States Department of State; Country Policy and Information Note Bangladesh: Background information, including actors of protection, and internal relocation (January 2018) and Country of Origin Information Report of Bangladesh (31 August 2013) published by the Home Office of the United Kingdom Government; The World Factbook: Bangladesh published by the Central Intelligence Agency of the United States and other news reports and articles.  There can be no valid complaint for the Board’s reliance on the COI.    

20.  The Applicant complained about the weighting put on conflicting information in the COI as if the Board was cherry-picking.  This is basically a finding of fact which is solely within the province of the Board as the tribunal of fact (see below).  There is no substance in this ground.

Improper assessment

21.  The Applicant complained that the Director did not properly address the issues in his case but just made a standardized assessment as if using a template.  The decision of the Director was superseded by the Decision of Board.  The Court assumed that the complaint was also directed at the Board’s Decision.  The Applicant gave no particulars and evidence to support his assertion.  The Notice may have a similar format as notices issued in respect of other claimants. The decisions of different adjudicators vary as a matter of personal style. There may be some standardization in decisions by the same adjudicator.  Such standardization may be useful to ensure consistency in treatment and that nothing which ought to have been considered has been left out.  No serious complaint could be made of such standardization. 

22.  Insofar as the complaint is directed at the conclusion of the Board is concerned, it is a challenge of the Board’s finding of fact.  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[14]. Thus, the Court focussed its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

23.  An applicant has to prove not only that his fears and risks are genuine, but also they fall within the criteria set out under the four applicable grounds.   On the basis of his evidence, the Board was not satisfied that the Applicant has proved his fears and risks are genuine and that those fears and risks fall within the criteria.  It found that the Applicant had failed to discharge the burden of proving his fears and risks and his entitlement to non-refoulement protection on all applicable grounds.   The Board gave reasons for its Decision.   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 and irrationality.

24.  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 burden of proof and standard of proof, the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  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 Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success. 

Conclusion

25.  For the above reasons, 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] CACV 78/2018; [2018] HKCA 460

[14] [2018] HKCA 524 at para 14(1)