SHEIKH MD ABU BAKKAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2716/2018

[2021] HKCFI 1759

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2716 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 Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 22 November 2018 (the “Decision”).

2.  The Applicant is a Bangladeshi national.  He sneaked into Hong Kong from the Mainland on 19 September 2013.  He was arrested by the police and referred to the Immigration Department.  On 1 October and 15 November 2013, he applied for a non-refoulement protection.  On 27 October 2017, he submitted a completed non-refoulement claim form (“NCF”).

3.  In due course, his non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By a Notice of Decision dated 11 December 2017 (the “Notice”), the Director of Immigration (the “Director”) rejected his claims.  His appeal to the Board against the decision in the Notice was dismissed by the Board’s Decision dated 22 November 2018.    

The Applicant’s case

4.  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. 

5.  The Applicant is married and has two children.  He operated a garment business.  From around November 2011, he was invited by Abdul Kadar (“Kadar”) whose brother is a member of the parliament for the Awami League (“AL”).  The Applicant neither agreed nor refused the invitation. 

6.  On 27 February 2012, the Applicant was asked to meet Kadar at the AL office.  There, Kadar asked him to do “some illegal work for his party”.  Then, he was tricked into holding a gun when Kadar suddenly took a photograph of him.  Kadar then threatened to send the photograph to all the authoritative agents, if the Applicant does not show loyalty to the AL.  The Applicant was in fear and fled. 

7.  The next morning, he returned to work in his shop.  He received a call from Kadar who repeated his threat and asked him to reconsider the offer.  He told his father about the threat.  His father advised him to leave his home for his safety.

8.  The Applicant left his home for Dhaka on 2 March 2012 and stayed with his aunt.  While in Dhaka, his father told him that the Rapid Action Battalion (“RAB”) was looking for him and advised him to leave Bangladesh.  He flew to China on 29 March 2012 and then sneaked into Hong Kong.   

The finding of the Board

9.  The Board found significant discrepancies between the Applicant’s evidence in his NCF and at the hearing before the Board.  Notably, he told the Board that he was a member of AL, that he joined AL a few months after he opened his shop in January 2006 and he had a membership card.  That is in stark contrast with his assertion in the NCF that he neither agreed nor refused to join AL.  Another significant anomaly is his allegation in his Notice of Appeal that he was attacked several times and received many threats from his enemy in AL; but in his evidence at the hearing, he repeated that he was never physically attacked in Bangladesh. The Board considered the anomalies to be significant as they relate to a central aspect of his claim.  The Board did not consider the discrepancies attributable to the passage of time, but found that the balance of the cumulative discrepancies raised doubts about the reliability of his evidence generally.

10.  While accepting that the Applicant was an ordinary supporter of AL, the Board did not accept he was pressured or even asked by the AL to undertake weapons training with a view to being an AL cadre or otherwise; that he was ever photographed by any member of AL with a gun in his hand; or that any such image has been reported to the RAB or any agency of the state.  The Board was not satisfied that the Applicant would face a real chance of harm in Bangladesh for any of the reasons he claimed. Accordingly, there was no factual basis to support the Applicant’s case of fear and harm under any of the four applicable grounds under the USM.

Grounds for judicial review

11.  The Applicant advanced the following four grounds of appeal in his notice of application for leave to apply for judicial review (Form 86):

(1)  the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

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

(3)  the Board’s decisions to refuse the appeal were unreasonable or irrational in the public law sense or are 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.

Ground (1) – Unlawful exercise of discretion

12.  Under this ground, he accused the Board of having unlawfully fettered its discretion by refusing his appeal on the grounds that he did not satisfy the requirement for non-refoulement protection.  This cannot be a valid ground for application for leave.  If the Applicant did not satisfy the requirement for non-refoulement protection, the Board has no discretion to exercise but to uphold the decision of the Director in the Notice and dismiss his appeal.  The real question is whether the Decision of the Board is reviewable for having committed errors of law, procedural unfairness or irrationality in its Decision.  Having examined all the grounds and rigorously examined the Decision and the papers, the Court was satisfied that the Decision could not be criticized for the above reasons.

Ground (2) – Procedural unfairness

13.  The basis of the Applicant’s complaint about procedural unfairness is that the majority of the documents in the appeal bundle used before the Board were in English and the Applicant did not have sufficient time to prepare for the hearing due to his limited skills in English and his being unrepresented.

14.  In Re Zafar Muazam[5], Re Zunariyah[6], Re Zahid Abbas[7], Re Tariq Farhan[8], and Re Lopchan Subash[9], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[10] nor the judgment of FB v. Director of Immigration[11] 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 Applicant was prejudiced due to lack of legal representation before the Board.

15.  Similarly, a claimant does not have absolute right to free language assistance at all stages of the proceedings.  In Re Karamjit Singh[12], the Court of Appeal adopted the rationale of 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 an applicant 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 ethnic community.  Indeed, the Applicant was able to file an adequately well written affirmation in English himself.

16.  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.  Though the appeal bundle is in English, it is basically made up of his NCF, the record of the screening interview and the decision of the Director in the Notice, including the Country of Origin Information (“COI”).  He admitted that he knew what were in the NCF and the record of the screening interview.  The Notice of the Director was issued to him on 11 December 2017.  It was not until 12 October 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 ten months to seek assistance from among his own circle.  Indeed, he had access to interpretation services as reflected in his affirmation and Form 86 filed in connection with this application which were very well written in English.  Also, he could have sought assistance from the interpreter at the oral hearing before the Board.  It lies ill in his mouth to attempt to overturn the result of the hearing on this ground. 

17.  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.  His complaint about lack of legal and language assistance is over-exaggerated.  At the hearing, after all these facts were put to him, he admitted there was no unfairness as a result of the lack of legal and language assistance.

18.  Part of his complaint about procedural unfairness is that the COI relied on by the Board was not officially recognised and made up of hearsay and outdated, which resulted in the Board making groundless speculation that it was safe for the Applicant to return to Bangladesh.  The COI relied on by the Director and the Board are all from credible and official sources, including Country Reports on Human Rights Practices for 2016: Bangladesh published by the United States Department of State; The World Factbook, published by United States Central Intelligence Agency; Country Information and Guidance on Bangladesh: Background information, including actors of protection, and internal relocation issued in November 2014 and Country of Origin Information (COI) Report on Bangladesh dated 31 August 2013published by the United Kingdom Government; and other news reports and articles.  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. 

19.  In view of its finding that the Applicant does not face a real chance of harm of any kind for any of the reasons claimed, the Board did not find it necessary to consider state protection and internal relocation.  Hence, the Board placed very little reliance on the COI, save for general background information in understanding the Applicant’s case.  The suggestion that the Board made groundless speculation based on outdated and unreliable COI is misconceived.

20.  The Court considered the complaint about procedural unfairness is totally groundless.

Ground (3) – unreasonableness and irrationality

21.  As for the overall or general complaint about irrationality and unreasonableness in the Board’s findings, these grounds of complaint are against the findings of facts by the Board.  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[13].

22.  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 law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; 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 claims for non-refoulement protection under any of the four applicable grounds.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks. 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, unreasonableness and irrationality.  There were no such elements in the Decision.  The Decision was utterly without fault. 

Ground (4) – Breach of greater care and duty owed to a self-represented claimant

23.  The Applicant did not particularize the duty and the breach.  In the light of the conclusion reached in respect of the other three grounds, the Court was unable to find there was any breach of the greater duty of care owed to the unrepresented Applicant.

Conclusion

24.  For the above reasons, the Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.  Accordingly, leave to apply for judicial review was 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 33 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] cacv 2/2018, (unreported) 23 March 2018

[6] [2018] HKCA 14

[7] [2018] HKCA 15

[8] [2018] HKCA 17

[9] [2018] HKCA 37

[10] (2004) 7 HKCFAR 187

[11] HCAL 51 of 2007, (unreported) 5 December 2008

[12] CACV 78/2018; [2018] HKCA 460

[13] [2018] HKCA 524 at para 14(1)