DAS SANTNA RANI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2308/2018

[2021] HKCFI 1336

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2308 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 an 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 19 October 2018 (the “Decision”).   

2.  The Applicant is a Bangladesh national.  She came to Hong Kong to take up employment as a domestic helper on 31 December 2013.  Her employment was prematurely terminated on 29 March 2014.  Thereafter, she did not return to Bangladesh and overstayed.  On 9 September 2015, she was arrested by the police and referred to the Immigration Department.  On 12 September 2015, she sought non-refoulement protection by written representation claiming that she will be harmed or killed by Awami League (“AL”) upon her return to Bangladesh for refusing to join AL.  

3.  Her non-refoulement claim was assessed on all three applicable grounds then available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3].  By a Notice of Decision dated 20 April 2016 (the “2016 Notice”), the Director of Immigration (the “Director”) rejected her application.  On 3 May 2016, the Applicant appealed to the Board against the 2016 Notice. 

4.  In the meantime, a further applicable ground, namely BOR 2 Risk[4]  ground, became available under the USM.  The Director invited submissions from the Applicant in respect of the BOR 2 Risk ground.  The Applicant made further submissions.  Then, by a Notice of Further Decision dated 19 April 2017 (the “2017 Notice”), the Director rejected her application under the BOR 2 Risk ground.

5.  When the Applicant’s appeal against the 2016 Notice came to be heard on 28 April 2017, the Board was informed of the 2017 Notice.  The Board found it expedient to treat the appeal as one against both the 2016 Notice and the 2017 Notice.  Thus, the Board considered the Applicant’s appeal based on all four applicable grounds under the USM.  Subsequently, on 19 October 2018, the Board dismissed the Applicant’s appeal.

6.   On 23 October 2018, the Applicant applied for leave to apply for judicial review of the Decision of the Board.  The Applicant did not appear at the first scheduled date of hearing.  She appeared at the re-scheduled hearing and explained that she had not received the notice of hearing, despite her confirmation that her address was correct.

The Applicant’s case

7.  The following account of the Applicant’s case is mainly based on the information in her non-refoulement claim form which was prepared by her with assistance of the Duty Lawyer Service.  The Applicant had a very distressed story to tell. 

8.  The Applicant was born in 1986.  Her parents were supporters of the Bangladesh Nationalist Party (“BNP”).  She became “solely an ordinary member” of the student wing of BNP.  In 2004, she underwent an arranged marriage to a businessman.  Her husband was a member and area leader of Jubo Dal (“JD”) the local youth wing of BNP.  The main opposition party in the area was AL.  AL was and still is the national ruling party.

9.  There was a non-political organisation called the Hefazat-E-Islam (“HEI”) which was pressing, nationwide, a 13-point demand to AL.  On 5 May 2013, the Applicant and her husband attended a rally in Dhaka held by HEI against the government.  The rally ended in panic, chaos and shooting by military forces resulting in deaths.  

10.  Some days after the rally, some AL people approached the husband and demanded him to switch allegiance to AL.  The husband stalled for time. 

11.  Then came 15 August 2013, which was the death anniversary of AL’s founder.  On the date of the anniversary, AL people used to attack BNP people all over the country.  That night, about 30 AL people came to the Applicant’s home.  They demanded her husband to join AL.  As her husband trembled and muttered with fear, he was shot in the head.  The Applicant fled to her husband’s uncle’s (the “Uncle”) home some 30 minutes away. 

12.  The Applicant and the Uncle made a report to the police, but had to pay a bribe to have the case registered and investigation started.  A week later, they visited the police station to check on the progress.  The Applicant was informed that the police could not help.

13.  The Applicant and her in-laws returned to their home as the Uncle was under pressure from AL for sheltering them.  She found her home burnt down.  Later that evening, five to six AL members came.  They told the Applicant that her husband was killed for not joining AL as requested.  Then they stripped her of her clothes.  Then the man who shot her husband raped her.  After the incident, the Applicant fled, obtained some clothes from a neighbour, took a night-bus to Dhaka and stayed at a friend’s home for three weeks.

14.  While in Dhaka, the Applicant learned about employment opportunities in Hong Kong. She came to Hong Kong to take up employment as a domestic helper on 31 December 2013.  But her employment was prematurely terminated on 29 March 2014.

15.  The Applicant did not consider internal relocation as a viable option.  As AL is in power, she believes AL people could locate her and would kill her for refusing to leave BNP to join AL.  She does not believe police would protect her.

The finding of the Board

16.  In essence, the Board found the Applicant an incredible witness and her account of the incidents implausible.

17.  The Board found numerous significant inconsistencies and contradictions between her account as stated in the non-refoulement claim form and the evidence given at the screening interview and before the Board.  The contradictions are too many and are mostly as to serious matters which one would expect to be the subject of clear and consistent recall despite passage of time.  For example, she was contradicting as to whether after the rape she ran unclothed to her neighbour’s home; obtained some clothing; and then took a night bus to Dhaka as stated in her non-refoulement claim form; or that she went to Dhaka the day after she was raped.  Her explanation about the inconsistency was also confusing and unconvincing.

18.  The Board considered the Country of Origin Information (“COI”) and bore in mind that there was political violence between AL and BNP supporters at the time of the 2014 parliamentary election.  However, having regard to the low profile of the Applicant, being just a member of the student wing of BNP, it did not stand to reason that AL supporters would threaten to kill her to secure her switching allegiance and to locate her anywhere in Bangladesh to kill her.

19.  Not being satisfied with her factual case, the Board found that the Applicant failed to discharge the burden of establishing her non-refoulement claim even on the very low standard required.  These are findings of facts and credibility of witnesses which are solely within the province of the Board as the fact finding tribunal.

Grounds of the Application

20.  The Applicant advanced four grounds of appeal:

(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)

21.  Under Ground (1), the Applicant accused the Board of having unlawfully fettered its discretion by refusing her appeal on the grounds that she did not satisfy the requirement for non-refoulement protection.  This cannot be a valid ground for application for leave.  If an 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 the 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.  The answer to this question will become obvious after considering the other grounds.     

Ground (2)

22.  Under Ground (2), the Applicant accused the Board of having acted in a procedurally unfair manner in dealing with her appeal.  She did not give any particulars.  In her Notice of application for leave to apply for Judicial Review, she mentioned about her background.  She complained about not being given sufficient time to prepare for the hearing of the appeal; that the majority of the documents in the appeal bundle were in English; and that she had no legal representation.  This ground was directed at the hearing of the appeal before the Board. 

23.  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 claimant is prejudiced for want of legal and language assistance.

24.  The 2016 Notice and 2017 Notice were issued by the Director on 20 April 2016 and 19 April 2017 respectively.  The hearing of the Board was held on 28 April and 25 May 2017.  In between, the Applicant had a year to prepare for the appeal in respect of the 2016 Notice.  She might not have much time to prepare for the appeal against the 2017 Notice.  However, the 2017 Notice is about BOR 2 Risk which is based on the same set of facts.  It was for her convenience and benefit that it was heard at the same appeal.  If she needed time to prepare, she could have said so or refused to have the appeal heard together.  She did not.  It lies ill in her mouth to say that she did not have sufficient time to prepare for her appeal. 

25.  More specifically, the appeal bundle is basically made up of her non-refoulement claim form filled in by her with the assistance of an interpreter and the Duty Lawyer Service, the record of her screening interview which she attended with the assistance of an interpreter and the COI, which is in English.  She knows what is contained in her non-refoulement claim form which was prepared by her.  She knows what is contained in the record of screening interview which she attended with the assistance of interpreter and legal representation.  The COI are, unfortunately, not in Bengali.  However, the COI are information about her own country published by very credible sources. She ought to know about the information.  In any event, the COI are in her favour, as the Board accepted that there was political violence at the time of the parliamentary election in 2014.  Furthermore, she cannot expect these documents to be fully translated to her.  She has to find resources herself from among her friends.  Indeed, she had Asif who assisted her with preparation of her notice of appeal.  At the re-scheduled hearing, when all these facts were put to her by the Court, the Applicant agreed.  She admitted that she did not find anything wrong with the Decision.  However, the Court did not take her admission seriously and continued to explore her grounds of application.

26.  The Court noted that the Applicant also complained about procedural unfairness before the Board.  However, the context of her complaint was that she did not know what her friend Asif had put down in her notice of appeal on her behalf.  As the appeal was by way of a re-hearing, the Board had addressed that concern.  At the re-scheduled hearing before the Court, the Court also enquired from the Applicant and had her confirmation that she was free to tell the Board everything that she wanted to tell the Board and the Board allowed her to present her case fully.  There is no substance in this complaint.

27.  The Applicant complained that due to lack of understanding on what will happen in the hearing and since the hearing bundle was not provided earlier or with interpretation, she was confused in terms of what was happening.  Her complaint about lack of language assistance is covered by the preceding paragraph. Furthermore, at the hearing, she had the services of a qualified interpreter.  If she was genuinely confused, she should have sought clarification from the Board or asked for an adjournment to enable her to prepare for the hearing.  It lies ill in her mouth to attempt to overturn the result of the hearing on this ground.

28.  Taking a global view of the circumstances, the Applicant had the benefit of legal representation in presenting her case to the Director.  She also had the services of a qualified interpretation at the screening interview and at the oral hearing before the Board.  The Court was satisfied that there was no procedural irregularity in the proceedings before the Director and the Board. The Applicant has no arguable basis to challenge the fairness of the process. Nothing amiss arose from the non-provision of language assistance to facilitate her preparation for the hearing or from the non-availability of legal representation for her before the Board.

Ground (3)

29.  Under Ground (3), the Applicant argued that the Decision of the Board was unreasonable or irrational in the public law sense or are a result of procedural errors or unfair.  Again, she gave no particulars. The complaint about procedural unfairness was covered in Ground (2) and was rejected by the Court. 

30.  The Applicant’s overall or general complaint about irrationality and unreasonableness in the Board’s findings are directed at the finding of facts by the Board.  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 only scrutinise 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[12].

31.  Having rigorously scritinized the Decision, the papers and the evidence, 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; and observed a very high standard of fairness.   It reminded itself that while the Applicant bore the burden of proof of her claim, that burden was subject to the high standards of fairness required in these type of proceedings.  The Board correctly adopted the civil standard of proof and was conscious that the Applicant only needs to establish her claim to the low standard required that there was a risk of harm upon being returned to Bangladesh.  In assessing the evidence, it reminded itself that a claimant may have difficulties recounting details of events which occurred a long time ago, but the contradictions in the Applicant’s evidence were material and in respect of details which one would expect to be the subject of clear and consistent recollection despite passage of time.  The Board’s conclusion that there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds was utterly without fault.  There were no errors of law, procedural unfairness or irrationality in its Decision.

Ground (4)

32.  Under Ground (4), the Applicant accused the Board of failing to meet the greater care and duty owed to a self-represented claimant.  Again, she did not particularize the alleged failing of the Board.  The Board had fully considered the Applicant’s case; given her opportunities to explain the contradictions and inconsistencies in her evidence.  In the analysis of the aforesaid three grounds, the Court is well satisfied that the Board had discharged its duty of care owed to a self-represented claimant.  The Applicant suffered no disadvantage for not being legally represented. 

Conclusion

33.  The Court therefore 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 reasonable arguable.  There is no realistic prospect of success.  Accordingly, her application for 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] 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] [2018] HKCA 524 at para 14(1)