RIZAUL v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 567/2020

[2025] HKCFI 3527

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 567 of 2020

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 the Applicant being absent in open court;

1.   The Form 86 is amended on the Court’s own motion, naming only the Non-Refoulement Claims Petition Office as the Putative Respondent;

2.   Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Bangladesh. By a Form 86 dated and filed on 8 April 2020 (“Form 86”), which was accompanied by a supporting Affirmation also dated and filed on 8 April 2020 (“the Affirmation”), the Applicant sought leave to commence a judicial review of a decision of the Non-Refoulement Claims Petition Office (“NRCPO”) made on 11 March 2020 (“the NRCPO BOR 2 Decision”)[1]. The Affirmation exhibited only the TCAB Decision and unless otherwise stated herein I shall adopt the abbreviations and descriptions used within the latter.

2.  The Applicant sought an oral hearing of his application, but did not appear at such.  I have hence dealt with his application on the papers.

Background

3.  The Applicant’s background and case as to the incidents underlying his claim for non-refoulement relief, and the immigration and procedural history leading up to the NRCPO BOR 2 Decision, are set out therein, and in other documents referred to below.  I hihglight the following in relation to the present application:

(1)  He fears he will be harmed or killed by his former business partners, and by his cousins, if he is refouled to Bangladesh, and in doing so claimed that state protection was not available and that internal relocation was not viable;

(2)  The claim was assessed (during which period the Applicant was assisted by the Duty Lawyer Service) on the basis of Torture Risk[2], BOR 3 Risk[3] and Persecution Risk[4] by the Director of Immigration (“the Director”), who in a decision dated 31 July 2014 (“Director’s 1^st Decision”) held that the claim was not substantiated and rejected it;

(3)  As the Applicant filed a Notice of Appeal/Petition against the Director’s 1^st Decision, such claims were assessed by a member/adjudicator of the TCAB/NRCPO, including at an oral hearing held on 26 January 2015 at which the Applicant answered questions and provided additional information;

(4)  In the TCAB/NRCPO’s 1^st Decision, the TCAB/NRCPO assessed and rejected the Applicant’s claims on those bases and confirmed the Director’s 1^st Decision;

(5)  The Applicant applied for leave to judicially review the TCAB/NRCPO’s 1^st Decision, which application was refused by Fung J. in Rizaul v Director of Immigration (unrep., HCAL 90/2015, 14 August 2015);

(6)  Subsequently, by a letter from the Director dated 16 December 2016 the Director indicated that he proposed to give further consideration to the Petitioner’s claim under BOR 2 Risk, hence the Applicant was invited to submit (on or before 30 December 2016) additional facts relevant to that aspect of his claim.  However, the Applicant did not do so. His claim on the basis of BOR 2 Risk was hence assessed and rejected by the Director on 3 January 2017 in the Director’s BOR 2 Decision;

(7)  The Applicant filed a petition against the Director’s BOR 2 Decision on 25 June 2018 (“the BOR 2 Petition”) in which he claimed that the Director’s BOR 2 Decision was only sent to him on 14 June 2018 and received on 21 June 2018, and raised various allegations in a 10-page English attachment, including as to how and why he disagreed with parts of the TCAB/NRCPO’s 1^st Decision;

(8)  The petition was dealt with by a different adjudicator from that who had reached the TCAB/NRCPO’s 1^st Decision. An oral hearing was held on 30 December 2019 at which the Applicant indicated that he had included all the things he wanted to say on the papers in the hearing bundle; and

(9)  After the oral hearing, the NRCPO handed down the NRCPO BOR 2 Decision in which it held that the Applicant had not made out a case of BOR 2 Risk and confirmed the Director’s BOR 2 Decision.

Relevant parties and decisions in relation to which leave is sought

4.  The Affirmation claims it is made in relation for leave to judicial review “against the the Adjudicator… who refuse my Appeal/petition, as well the [Director] who reject(sic) my torture claim which made under [the Immigration Ordinance] Risk of Torture “CIDTP”” and makes some complaints against both the Adjudicator and the Director (e.g. at Complaint 9 as defined below).  However, in the Form 86 the Applicant named the relevant adjudicator of the NRCPO as the only putative respondent, only sought relief in relation to the NRCPO BOR 2 Decision, and named the Director as the only putative interested party. I hence did and do not understand the Applicant to be seeking leave to commence a judicial review of the Director’s BOR 2 Decision.  If and insofar as he apparently seeks such leave, that application stands only to be rejected and I do so given the existence and implications of the two-tier system, the lack of exceptional circumstances justifying such an application, and my findings below (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310).

5.  I have therefore amended the Form 86 of my own motion to reflect the identity of the proper putative respondent.

Legal Principles

6.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

7.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO. (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

8.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

9.  The grounds for the application for leave as apparently raised in the Form 86 are that “the Respondent is in breach of procedural fairness in the following parts”:

(1)  “… the Respondent had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement”. (Ground 1)

(2)  “… the Adjudicator acted in a procedurally unfair manner in dealing with Applicant’s appeal”. (Ground 2)

(3)  “…the Respondent’s decisions to refuse the Applicant’s appeal on (sic) were unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness” (Ground 3); and

(4)  “… the Respondent failed to meet the greater care and duty owed to a self-represented claimant” (Ground 4).

10.  The Form 86 also says that the application “also includes a judicial review of the Adjudicator’s decision of the Applicant’s oral hearing of the Appeal/Petition.”  As this is repeated in the Affirmation, I will address this in relation to Complaint 1 below.

11.  The Affirmation contains the following allegations:

(1)  That the Applicant “also includes a judicial review of the Adjudicator’s decision of my oral hearing of the Appeal/Petition”; (Complaint 1)

(2)  The Applicant lodged a claim for non-refoulement protection on 17 November 2008, which was transferred into the USM “and it was refused after 10 years on 03 day of January 2017 which is substantially delay”; (Complaint 2)

(3)  The Applicant was not legally represented before the NRCPO, and “no Legal advices(sic) was provided to the Applicant before his appeal filing”; (Complaint 3)

(4)  The majority of the hearing bundle was in English and the bundle was given to him only a few days before the appeal hearing with an intervening weekend, and he did not have time to find a reasonably cheap interpreter or hire one since he had no income and was not allowed to work in Hong Kong.  He hence did not understand what would happen and was “confused” in terms of what was happening, and having answered all the questions honestly is aggrieved that his credibility was found questionable.  The hearing was unfair due to lack of care by the TCAB to make appropriate arrangements in relation to the hearing bundle; (Complaint 4)

(5)  The Applicant was notified of the decision by letter on 6 April 2020, and not by phone as he had requested; (Complaint 5)

(6)  The decision-maker had “significantly relied on the source of news which is not officially recognized or it is simply hearsay. They have also relied on some cases which are fairly outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations that it is safe for him to return back to my country of origin”; (Complaint 6)

(7)  It was unfair for a decision to be made on BOR 2 Risk “without even being screened by the Immigration Department. How is this possible for any claim goes to Appeal section directly without even screened or verify by the Immigration Department first?” (Complaint 7)

(8)  “Similar to this there is many more unacceptable and unexplainable grounds, which are shown to refuse my Appeal/petition.” (Complaint 8)

(9)  That the Director and the Adjudicator reached the wrong decision as they rejected his claim for non-refoulement relief “without any proper inquiry and without carefully understanding [the Applicant’s] situation”, which is followed by asuggestion that a fair understanding of his claim requires that “my immigration officer and the Adjudicator are invited to tour my country and ask those familiar with [my] case what real danger I would face if I am returned there”; (Complaint 9) and

(10)  Complaints that the wrong decision was reached on the merits[5]. (Complaint 10)

12.  Grounds 1 to 4 are the only grounds mentioned in the Form 86, but are entirely inadequate, being merely generic, vague, and unparticularised assertions using selected keywords and phrases without reference to any underlying facts or matters establishing why, how, and where each of those complaints arise in relation to the NRCPO BOR 2 Decision.

13.  Nevertheless, given the seriousness of the issues at hand and the Complaints raised, I have considered the NRCPO BOR 2 Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.  Having done so, I do not (for the following reasons) see that the Applicant has any reasonably arguable case that there was procedural unfairness, an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test sufficient sufficient to vitiate the NRCPO BOR 2 Decision, even taking into account all of Grounds 1 to 4 and Complaints 1 to 10.  Hence there is no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

14.  Firstly, the NRCPO BOR 2 Decision sets out the procedural history of the matter including that it had decided to hold an oral hearing, at which the Applicant said that he had included all the things he wanted to say on the papers in the hearing bundle (Paragraphs 1 to 5).  It then outlined the Applicant’s case before it in detail in relation to the 1^st and 2^nd Incidents (Paragraphs 6 to 32). This was followed by an assessment (with reasons given and reference to relevant underlying evidence and COI) that it was highly unlikely that the Applicant would – if refouled – suffer ill-treatment from his partners, or from his cousins, and also that it was viable for him to internally relocate to Dhaka or Chittagong (Paragraphs 33 to 54). Given such analysis, there was no BOR 2 Risk and the Director’s BOR 2 Decision was confirmed (Paragraphs 55 to 59).

15.  Secondly, and as a matter of context, it is incorrect for the Applicant to claim in the Form 86 and the Affirmation that the Director’s BOR 2 Decision and/or the NRCPO BOR 2 Decision concerned Torture Risk, BOR 3 Risk, and/or Prosecution Risk.  The Applicant’s claims on those bases were determined by way of the TCAB/NRCPO’s 1^st Decision.  The NRCPO BOR 2 Decision (and for that matter also the Director’s BOR 2 Decision) did not purport to re-determine any of those bases and issues of risk. Rather, the NRCPO dealt only with BOR 2 Risk.

16.  Thirdly, and pursuant to my analysis and scrutiny of the NRCPO BOR 2 Decision, I do not see any reasonably arguable ground for judicial review arising in relation to Complaints 1 and 6.  It is clear that an oral hearing was held, and that the decision-maker drew conclusions based on (and giving reasons with reference to) the relevant evidence and COI before it.  I do not see any public law error from its decision to approach the matter in this way, particularly given the contents of the Applicant’s petition.  Also, the Applicant has not identified what source of news or cases relied on was/were alleged to be “not officially recognized”, hearsay or outdated, let alone how such have allegedly resulted in a reasonably arguable public law error in relation to the conduct of the oral hearing and the findings pursuant thereto as set out in the NRCPO BOR 2 Decision.  Nor do I see that any such issues arise in this case.

17.  Moreover, and for reasons below, I do not see that the Applicant’s other Complaints and Grounds establish any reasonably arguable error of public law which would entail him to rely on Complain 1, whether in relation to the conduct of the oral hearing, or the conclusions reached in the NRCPO BOR 2 Decision.

18.  As to Complaint 2, I do not see that there has been substantial delay in processing the claim given that there are many pending claims for non-refoulement protection and the Director has had to deal with a large number of cases with limited resources.  In any case, I do not see how the length of time taken by the Director in processing the Applicant’s claim as based on BOR 2 Risk gives rise to any reasonably arguable case that there has been a public law error (including in relation to Grounds 1 to 4) which vitiates the NRCPO BOR 2 Decision.  A fortiori when the Applicant has not identified any unfairness or prejudice, and when prior to the Director’s BOR 2 Decision, there had been an assessment and determination of the factual basis of the Applicant’s non-refoulement claims in relation to BOR 3 Risk, Persecution Risk, and Torture Risk.

19.  Complaints 3 and 4 do not (even if viewed cumulatively, and/or alongside Complaints 1 and 6) establish any reasonably arguable case of an error of public law, including those set out in Grounds 1 to 4:

(1)  Neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, nor the judgment of FB v Director of Immigration HCAL 51/2007 grant the Applicant an absolute right to free legal representation at all stages of the proceedings (Re Zafar Muazam (unrep., CACV 2/2018, 23 March 2018); Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; Re Ahmed Syed Rafiq [2018] HKCA 178 at §22; Vu Hong Diep v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2023] HKCA 1378).

(2)  Here, I see nothing amiss with the lack of legal representation before the NRCPO, given that the Applicant was legally represented prior to the making of the Director’s 1^st Decision. A fortiori where the Applicant did not apparently complain to the NRCPO about the lack of legal representation, and has not identified any specific resulting unfairness/prejudice.

(3)  Similarly, the high standard of fairness does not require or include provision of interpretation at any time the Applicant claimed or desired, particularly when it was his choice to come to Hong Kong where the official languages are Chinese and English. He has to cope with and find ways around this alleged disability and cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit as and when he requires.  He has to find assistance himself from among his friends and his ethnic community. Indeed, the Applicant’s Form 86 was in English and the Affirmation was written in English with a translation clause. Similarly, he was able to submit his petition to the NRCPO in English, which included a 10-page English document explaining why he disagreed with specific parts of the TCAB/NRCPO’s 1^st Decision. The Applicant hence has access to, and would have been able to seek, interpretation services and language assistance if necessary (Kamran Khan [2022] HKCFI 1924 at §§21-25 and Kamran Khan [2022] HKCA 460 at §§16-17).

(4)  I see no reasonably arguable case of procedural unfairness in relation to Complaint 4, given that:

i.    The Applicant should have been familiar with the information he had provided in the Bundle, in particular with the Non-Refoulement Claim Form and the record of his interview which were of core importance and which would have been prepared with the benefit of translation and legal assistance.  Also, and even assuming (as the Applicant alleges) that he only became aware of the Director’s BOR 2 Decision in June 2018, some 18 months elapsed between then and the hearing, during which he also filed his petition including an English attachment criticising portions of the Director’s BOR 2 Decision and the TCAB/NRCPO’s 1^st Decision.  He clearly hence had ample time, in preparing for the hearing, to familiarise himself with the core documents and information that he had provided and other relevant documents;

ii.   The Applicant should have paid due attention to and prepared for his appeal hearing regardless of any intervening weekend, and given also his access to interpretation services/language assistance;

iii.  There is no indication that he complained at the hearing about the lack of interpretation and/or understanding of the Bundle or any documents, that he needed more time or assistance to prepare for the hearing, about unfairness, and/or about any confusion relating to such issues.  See and cf. NRCPO BOR 2 Decision paragraphs 5 and 43; and

iv.  The Applicant has not identified any specific procedural unfairness and resultant confusion on his part which affected or prejudiced the conduct of the oral hearing and/or the NRCPO BOR 2 Decision.  Nor do I see that that any such issues arise in this case.

(5)  Complaints 3 and 4 hence do not establish any reasonably arguable public law basis for the Applicant to criticise the NRCPO’s assessment of his credibility and the facts.

20.  Nor do the facts within Complaint 5 (even if accepted as true) raise any reasonably arguable ground for judicial review. There is no legal basis on which the Applicant was entitled to be informed by telephone of the outcome of his petition.  There is also no public law error arising from the Applicant being served by post with the NRCPO BOR 2 Decision, given the provisions of s. 37ZV Immigration Ordinance (CAP. 115) and Paragraph 22.5 of The Practice and Procedural Guide of the Administrative Non-Refoulement Claims Petition Scheme in force at the time. In any event, the Applicant filed his Form 86 and Affirmation within the 3-month deadline.

21.  Complaint 7 is devoid of merit as the issue of BOR 2 Risk was clearly raised and assessed by the Director in the Director’s BOR 2 Decision, pursuant to which the Applicant petitioned to the NRCPO.  I also do not see that it is reasonably arguable that such approach is to be criticised on any public law grounds, let alone to an extent so as to vitiate the NRCPO BOR 2 Decision.

22.  As for Complaint 8, the Applicant has not provided specifics or particulars of such alleged “many more unacceptable and unexplainable grounds” (including whether and why such are public law grounds) on which he apparently relies.  There is hence no complaint which I can properly evaluate. In any event, for reasons above and below, I see no reasonably arguable case that there are public law errors sufficient to vitiate the NRCPO BOR 2 Decision.

23.  Complaint 9 also does not raise any arguable ground (including in the nature of the Grounds) of judicial review, as there is no legal or legislative basis to require the Director or the TCAB/NRCPO to actually visit the risk state or country of origin to conduct any investigation of a non-refoulement claim.  While the inquiry is one of joint endeavour and there is a high standard of fairness, the burden is on the Applicant to prove his claims, and the Director and the TCAB/NRCPO are to conduct proper enquiries into current and relevant COI as regard his home country in their assessing and determining his claims (Palao Rosita Borja [2024] HKCFI 795; Das Radha Mohan [2024] HKCFI 2208).

24.  Complaint 10 does not raise any reasonably arguable ground of judicial review.  This is because the role of the Court in a judicial review is not to provide a further avenue of appeal, and judicial review is not an avenue for revisiting the assessment in the hope that the court may consider the matter afresh in the absence of any legal error, of which I have found none (see the authorities cited in Paragraph 7 above).

Conclusion

25.  In the circumstances, I have ordered that the Form 86 be amended as described above, and that the application for leave to apply for judicial review be dismissed.

26.  For completeness, I also dismiss the applications made in the Form 86 for an extension of time, continuation of anonymity or sealing orders which the Applicant claims were made at the commencement of these proceedings, and for costs.  I do so as there is no need for an extension of time to be made, there were no anonymity or sealing orders made at the commencement of these proceedings (and there are no grounds put before me for such an application), and as there is no basis on which the Applicant should be awarded costs.

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