MOLLA DULAL alias MD ROKANUDDIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2086/2019

[2024] HKCFI 3349

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2086 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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Mr Molla Dulal alias Md Rokanuddin (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 15 July 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 30 June 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is a Bangladeshi. He was born on 10 October 1960 in Munshiganj, Bangladesh. He received Class 10 education and worked as a salesman between 2008 and 2014.

The Claim

3.  The Applicant claimed to be one of the general secretaries of the political party, Bangladesh Nationalist Party (“BNP”) and as a result was attacked by the rival political party, the Awami League (“AL”).

4.  The Applicant claimed that he was attacked by about 10 AL members on 20 January 2013 when he was attending a meeting (“Meeting”) with fellow BNP members. They attacked him with sticks and knives and his left leg was wounded (“Incident 1”). The Applicant escaped and took some medicine from a local doctor. The Applicant reported Incident 1 to the chairman of the local union council and the police, but they did not take any actions.

5.  On 5 February 2014, about 5 AL members (including two assailants in Incident 1) issued a death threat towards the Applicant. They approached the Applicant while he was sitting in the local market and told him that he would be killed if he continued to support the BNP (“Incident 2”).

6.  The Applicant claimed that he would be ill-treated or killed by the AL members if he were returned to Bangladesh.

Procedural history

7.  The Applicant arrived in Hong Kong on 28 October 2014 illegally. He surrendered to the Immigration Department on 8 December 2014. By a written representation of 12 March 2015, the Applicant lodged the Claim.

8.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Ordinance”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR; and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

9.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

10.  On 22 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the interested party.

The DOI Decision

11.  The Director noted that the low intensity and low frequency of past ill-treatment from the AL members was indicative of a small future risk of harm upon the Applicant’s return to Bangladesh. Taking into consideration the intensity of the past ill-treatment, the mode of assault, the extent and severity of the injuries sustained, recovery period and the descending mode of threat from attack to verbal threat, the Director considered that the threat and ill-treatment inflicted upon the Applicant by the AL people did not attain a minimum level of severity and no severe pain or suffering within the meaning of “torture” as defined under section 37U(1) of the Ordinance had been inflicted on the Applicant. There was no substantial ground to believe that the Applicant would face a foreseeable and real risk of harm.

12.  The Applicant was only one of the many general secretaries of BNP, the Director found it hard to understand why the AL people would be so desperate to harm or even kill the Applicant as he claimed. Based on information provided by the Applicant, the acts of the AL people did not show any real intention to harm or kill the Applicant. Their threat had never materialized. The Applicant only experienced one attack and verbal threat on one occasion. If the AL people had the intention to seriously harm or kill the Applicant, they had abundant chance and could materialize their plans with ease. The Director was of the view that the Applicant’s assertion of being killed by the AL people upon his return to Bangladesh was too far-fetched.

13.  The Applicant’s delay in making non-refoulement claim also indicated that he did not perceive a high risk of harm.

14.  The Applicant had once reported Incident 1 to an officer in Lou Ho Jong police station who refused to register his case but the Applicant did not escalate the case to higher level of authorities or sought assistance from other organizations when there were channels available for him to report to the police or other state authorities in Bangladesh on misconduct or inaction of individual police officer. On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that reasonable state protection would be available to the Applicant, if necessary. The availability of state protection further lowered or negated the Applicant’s perceived risk.

15.  The Applicant had never encountered any problems from the Bangladeshi immigration authorities upon his departure or arrival in Bangladesh. He was not a target of interest to the Bangladeshi government. The problem faced by the Applicant in Bangladesh originated from a private dispute between the Applicant and the AL people in his hometown on their difference in political affiliation. There was no evidence to suggest that the AL had agreed, or would agree to lend its political support and influence to these AL people to impose any harm or threats on the Applicant. There was also no substantial ground to believe that the AL people had the abilities and resources to locate the Applicant nationwide in Bangladesh. The Director found that internal relocation would be viable. If the Applicant moved to Chittagong or Khulna, the AL people would have great difficulty in locating him. After considering his age and work experience, the Director found that it would not be unduly harsh to expect him to relocate and lead a normal life.

16.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

17.  After considering the Applicant’s claims including his written evidence, the record of his interview, his notice of appeal and his oral evidence given at the hearing before the Board (“Board Hearing”), the Board proceeded on the basis that the events he relied on were true.

18.  The Board noted that the Applicant was not harmed before Incident 1, even though he had joined the BNP for about 20 years. The Board further noted that nothing happened to the Applicant during the 12 months between Incident 1 and Incident 2 and nothing happened to the Applicant during the 8 months between Incident 2 and the Applicant leaving Bangladesh. The Board was of the view that had the AL people had the intention to harm or kill the Applicant, they could have done so any time during the aforesaid 2 periods of time but they didn’t. The Board found that the Applicant did not face any serious risk of harm upon his return to Bangladesh.

19.  The Board considered that the Applicant was not a target of the AL and that he was attacked in Incident 1 because of his participation in the Meeting. The Board noted that the AL members could have seriously harmed him or killed him in either of the Incidents but chose not to do so. This suggested that the Applicant was not a target of the AL and the death threat in Incident 2 was just an empty threat (§42 of the Board’s Decision).

20.  The Board also considered that the Bangladeshi government had taken steps to address corruption and abuse of power in the police and that state protection would be available to him.

21.  The Board considered the age, education and work experience of the Applicant and found that internal relocation would be viable. It held that the Applicant would have no difficulty in living in another city in Bangladesh, such as Dhaka or Chittagong.

22.  The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

23.  In a judicial review, the court does not step into the shoes of the decision makers.

24.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board”.

25.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

26.  In the Form 86, the Applicant put forward the following grounds in support of his intended judicial review:

(1)  the Board had unlawfully fettered his discretion by refusing the Appeal;

(2)  the Board acted in a procedurally unfair manner in dealing with the Appeal;

(3)  the Board’s decision to refuse the Appeal was unreasonable, irrational or was 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.

27.  In the Supporting Affirmation, the Applicant raised the following complaints:

(1)  he lodged the Claim on 8 December 2014 which was refused only by 30 June 2018. There was substantial delay in processing the Claim;

(2)  he was not legally represented in the Appeal and received no legal advice for the Appeal;

(3)  the hearing bundle was given to him just 8 days before the Board Hearing and the Director’s skeleton submissions was given to him just a few days before the Board Hearing. There was an intervening weekend before the Board Hearing. There was insufficient time for him to prepare for the Board Hearing;

(4)  The majority of the documents were in English and he had only limited skills in English. He was unable to find interpretation service which he could afford. He was confused in terms of what was happening. He said that the lack of care by the Board to make appropriate arrangements in relation to the hearing bundle rendered the Board Hearing unfair;

(5)  the Board did not inform him by phone of the Board’s Decision being issued;

(6)  he was aggravated that his credibility was found questionable;

(7)  the Board significantly relied on source of news which is not officially recognized, hearsay or outdated;

(8)  his BOR 2 risk claim had not been screened by the Immigration Department;

(9)  the Appeal was refused on unacceptable and unexplainable grounds. The Director and the Board had rejected the Claim without any proper inquiry and without carefully understanding his situation. He asserted that: “To understand my claim fairly, my immigration officer and the Adjudicator are invited to tour my country and ask those familiar with his case what real danger I would face if I am returned there.” (§15 of the Supporting Affirmation)

28.  The Applicant attended the court hearing on 24 October 2024 (“Court Hearing”). I asked the Applicant to specify the fettered discretion, the procedural unfairness and the failed duty of care being matters referred to in the Form 86 as his grounds for this intended judicial review. The Applicant did not identify any but said that those matters had been wrongly stated in the Form 86.

29.  The Applicant surrendered to the Immigration Department on 8 December 2014. He informed the court at the Court Hearing that he was released on recognizance after about 1 month. He made the Claim on 12 March 2015 by way of a written signification. The DOI Decision was issued on 30 June 2018, ie about 3 years and 3 months after the Applicant’s written signification.

30.  There were many pending claims for non-refoulement protection. The Director had to deal with a large number of cases with limited resources. It took the Director about 3 years and 3 months to investigate and decide the Claim is understandable. I do not agree that there was delay on the part of the Director in handling the Claim. Furthermore, the Applicant has been released on recognizance pending determination of the Claim. I do not see that the length of time taken up by the Director in processing the Claim had caused any prejudice or unfairness to the Applicant. In the circumstances of this case, I do not agree that the length of time taken up by the Director in processing the Claim will per se render the Board’s Decision liable to be quashed by this court. The Applicant confirmed at the Court Hearing that he had no issue on this point.

31.  The Applicant complained that he was not legally represented at the Board Hearing and received no legal advice for the Appeal. At the Court Hearing, the Applicant confirmed that he was assisted by lawyer provided by the Duty Lawyer Service (“DLS”) when he attended the screening interview with the immigration officer but he did not apply to DLS for legal assistance for the Appeal.

32.  The Court of Appeal pointed out in Re Zunariyah [2018] HKCA 14:

“18. As a standard practice, the Director would have drawn her attention to the Duty Lawyer Service and asked her to contact them as soon as possible. The Duty Lawyer Service provided legal representation in appeal to the Board for cases with merit. Neither Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings. The claimant already had the benefit of legal representation in presenting her case to the Director of Immigration including presence of lawyer at the interview by the immigration officer. Duty lawyer service is available for the appeal proceedings though it is subject to a merit test.” (original underlining)

33.  The high standards of fairness do not prescribe that a non-refoulement claimant has an absolute right to legal representation at all stages of the process. (Vu Hong Diep v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2023] HKCA 1378 at §17) As the Applicant did not apply to DLS for legal assistance when he appealed to the Board, it does not lie in his mouth to complain on lack of legal representation in the proceedings before the Board.

34.  The Applicant complained that the hearing bundle and the Director’s skeleton submissions were provided to him only a few days before the Board Hearing with a weekend intervening, leaving him insufficient time to prepare for the hearing. The documents were substantially in English which he was not familiar with and he could not afford interpretation service.

35.  It could not have been the intention of any authority laying down the principle of high standards of fairness that the principle would include provision of interpretation service at any time a claimant desired or required. It was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. He has to live with or cope with his language disability. He cannot expect to have the luxury of having every document translated into his native language for his benefit as and when he requires. He has to find assistance himself from among his friends and his ethnic community.

36.  I note that the Applicant prepared the Supporting Affirmation with the assistance of interpreter. The Applicant confirmed at the Court Hearing that the Supporting Affirmation was interpreted to him by his friend. This shows that the Applicant could arrange for interpretation by his friends.

37.  The hearing bundle should be made up of the Applicant’s written representation, his claim form, the records of his screening interview, the DOI Decision, the COI and his notice of appeal. The Applicant knew what was contained in his written representation, his claim form and his notice of appeal which were filled in by him. He knew what was contained in the records of his screening interview which he attended with the assistance of duty lawyer and interpreter. The records should have been read back to him in his own language before he signed the same. Recognizing the limitation in his English language ability and importance of his claim, he ought to have taken some notes to remind himself of what had said or written rather than relying on the host country to provide him the convenience of interpretation at his fingertips. The Director’s skeleton submissions would only be some elaboration of the DOI Decision which DLS would have explained to the Applicant previously. At the Court Hearing, the Applicant was unable to identify any document in the hearing bundle which he had difficulties to understand because of the language problem.

38.  In the circumstances of this case, I see no merits for the Applicant to argue that the lack of language assistance had jeopardized his rights in this case.

39.  The Applicant had received the hearing bundle and the Director’s skeleton submissions a few days before the Board Hearing. The Applicant confirmed at the Court Hearing that he received the Director’s skeleton submissions together with the hearing bundle which was sent to him about 8 days before the Board Hearing. The period might not be long but the Applicant should not have indulged himself for the weekend and forgotten about his appeal as if he was a tourist visiting Hong Kong. Furthermore, time should start to run from the date of his notice of appeal, i.e. 9 July 2018. The Board Hearing was held on 22 February 2019. In between, the Applicant had more than 7 months to find out what the appeal bundle was about. If he needed more time for preparation, he could have raised that with the Board at the Board Hearing and sought adjournment of the hearing but there were no records that the Applicant had made such request for adjournment to the Board. In §30 of the Board’s Decision, the Board recorded that the Applicant adopted all the information contained in the hearing bundle and confirmed that they were all true and correct.

40.  Having regard to the fact that the Applicant should be familiar with what was contained in the hearing bundle and he did not raise any such issue during the Board Hearing when he was able to give evidence and make representation of his case to the Board without any problem, I do not find any merits in this complaint of the Applicant.

41.  The Applicant complained that the Board did not inform him by phone of the issuance of the Board’s Decision. In §8 of the Supporting Affirmation, the Applicant confirmed that he had received the Board’s Decision within 5 days of its issuance and well within the time limit for applying for leave for judicial review and the Applicant is within time for this leave application. I do not see how this complaint may advance the Applicant’s case or constitute a ground supporting this leave application. At the Court Hearing, the Applicant said that he did not recall having asked the Board to inform him by phone of the issuance of the Board’s Decision. This ground is not reasonably arguable.

42.  To challenge the finding of the Board on his credibility, the Applicant in effect seeks to challenge the findings of fact of the Board which is not permissible in a judicial review unless there were errors of law, procedural unfairness or irrationality in making such findings. The Board in this case did not query the Applicant’s credibility. Relying on this ground to apply for judicial review against the Board’s Decision has no merits.

43.  The Applicant complained that the Board relied on COI which were unofficial, hearsay or outdated. COI by nature is hearsay evidence. The COI considered by the Director had been listed in the List of References annexed to the DOI Decision. They were included in the hearing bundle and considered by the Board. They came from official websites of government authorities, international organizations and news media. They included publications up to January 2018 when the Board Hearing took place in February 2019. They were not outdated. The Applicant confirmed at the Court Hearing that he had not sought to adduce any more up-dated COI at the Board Hearing. I see no merits in this complaint of the Applicant.

44.  The Applicant complained that his BOR 2 risk claim had not been screened by the Immigration Department. This is plainly wrong. In §3 of the DOI Decision, it was expressly stated that the Claim was assessed on all applicable grounds under the USM including (but not limited to) right to life under Article 2 of BOR. More detailed discussions on the BOR 2 risk claim were set out in §§24 to 25 of the DOI Decision. The Applicant’s BOR 2 risk had also been considered by the Board in §§12 to 13 and §49 of the Board’s Decision. I find this ground for the intended judicial review wholly devoid of merits.

45.  The Applicant said that the Appeal was refused on unacceptable and unexplainable grounds. He also complained that the Director and the Board had rejected the Claim without any proper inquiry and without carefully understanding his situation. The Applicant provided no particulars or specifics to substantiate these complaints. He said that the Director and the Adjudicator should have visited his country to understand his claim.

46.  There is no legal or legislative basis to require the Director or the Board to actually visit the risk state or country of origin to conduct any investigation of a non-refoulement claim. The burden is on the Applicant to prove his claims while the Director and the Board should have conducted proper enquiries into current and relevant COI as regard his home country in their assessment and determination of his claims which the Director and the Board had done in this case.

47.  In the DOI Decision and the Board’s Decision, the Director and the Board had set out the reasons for their respective findings leading to their decisions in rejecting the Claim and the Appeal.

48.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

49.  Having rigorously examined the Board’s Decision, the DOI Decision and the Supporting Affirmation with anxious scrutiny, I am 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; correctly identified the issues and observed high standards of fairness.

50.  The Board found that the Applicant had failed to establish that he would face the proscribed risks if he were to be sent back to Bangladesh. The Board was of the further view that internal relocation, if necessary, was viable to the Applicant. It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable.

Conclusion

51.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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