T v. Torture Claims Appeal Board

HCAL 80/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

NO 80 OF 2015

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D E C I S I O N

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INTRODUCTION

1.This is an application for leave to apply for judicial review.  The applicant is a Bangladeshi national who earlier made a non-refoulement claim.  The claim was first rejected by the Director of Immigration (“the Director”), and subsequently by the Torture Claims Appeal Board (“the Board”).

2.In the (original and amended) Form 86, the Director was named as the 1^st putative respondent (and the Board the 2^nd putative respondent).  The two administrative decisions respectively made by them were challenged by the applicant.

3.At the inter partes hearing of this leave application, the applicant sought, and was granted (without opposition), leave to re-amend Form 86. The re-amendment is in short:

“... [not to seek] leave to apply for judicial review of the Decision of [the Director] ... and instead only seeks leave in respect of the Decision of [the Board]” (para 2, applicant’s written submissions).

4.An inter partes hearing was directed. The Director appeared, presumably to put forth the Board’s case (the Director’s appearance was rendered unnecessary by the re-amendment), and opposes this application.

BACKGROUND

5.The applicant’s father and family were supporters of the Awami League Party (“ALP”) (he was a general member).  Before he left Bangladesh, the applicant used to organize rallies and meetings for ALP.

6.This attracted the attention of some members of the Bangladesh Nationalist Party (“BNP”). One evening in April 2005, the applicant was ambushed and members of BNP surrounded him.  One among the group pointed a pistol at him and the group threatened him, saying that he had caused damage to BNP by influencing people.

7.The applicant pleaded for his life and promised to join BNP if he was released.  The group later let him leave, saying that they would attack or kill him if he did not keep his promise.

8.The applicant did not report the incident to the police, believing that this would only invite further reprisals and put him in danger.

9.The applicant left his home town to live elsewhere in Bangladesh.  However, he learnt from his wife the police were looking for him because a false report of possession of illegal firearms had been made against him.  In addition, some people looked for him at his home and they threatened his wife.

10.The applicant left Bangladesh in August 2006, and finally arrived in Hong Kong on 4 September 2006.  He applied for refugee status on 5 September 2006.  He later made an application for non-refoulement protection in 2009.

11.The Director considered the applicant’s non-refoulement claim and rejected it in August 2014; the Board dismissed the applicant’s appeal against that decision in May 2015.

THIS APPLICATION

(a)  The Director’s decision

12.Quite a few points have been put forth in the parties’ respective written submissions.  They will be discussed below.

13.But before dealing with those points, a few words should be spent on the Director’s decision to reject the non-refoulement application.  That decision was made in relation to:

(a)  Part VIIC, Immigration Ordinance (Cap 115) (torture claims);

(b)  Art 3, s 8, Hong Kong Bill of Rights Ordinance (Cap 383) (no torture or inhumane treatment);

(c)  Art 33, 1951 Convention relating to the Status of Refugees (prohibition of expulsion or return).

14.There is no obvious error on the face of the record as regards the Director’s decision; nor are there obvious indications in the records that the Director has:

(1)  erred in law;

(2)  decided unreasonably in the Wednesbury sense;

(3)  reached a conclusion against the weight of the overall materials placed before him.

Such being the case, and bearing in mind the re-amendment must have been the result of a considered decision on the applicant’s part, the lack of challenge against the Director’s decision can be taken in this application as implying that no reasonable argument can be put forth against the approach adopted by the Director, or the conclusion reached by him.

15.It is however trite that the hearing before the Board is in the nature of a complete re-hearing, and not by way of appeal (which seems to be akin to an appeal from the master to the judge in chambers (“master appeal”)).  But does it follow that, once a decision has been made by the Board, that decision effectively supersedes the Director’s, rendering the latter irrelevant in law?  To determine that, one has to consider the proper approach to be taken when there is a challenge (raised by way of judicial review (and as a necessary prerequisite to doing so, an application for leave)) directed against the Board only (but not the Director).

16.There seems to be three possible answers raised in para 15 above (whether the Director’s decision can be “ignored” when there is a subsequent Board’s decision):

(a)  because Cap 115 provides for a two-tier system, all applicants are entitled to a “proper” hearing at both tiers.  That being the case, impropriety of any kind on the Board’s part can found an arguable challenge irrespective of the ground(s) of complaint directed against the Board (and even if it is directed only at the Board’s decision);

(b)  because the Director has reached a correct decision, and done so without impropriety (as evidenced by the Board’s confirmation, and more importantly, the lack of challenge by the applicant), any challenge against the Board by way of judicial review (which usually focuses on matters of fairness rather than the merits of the application itself) even if successful at the end, may well be merely academic (in that a proper decision having already been made by the Director, it is well within the Board’s power to confirm it).  Public resources should not be spent on applications which have no substantive merits;

(c)  a “flexible” approach; that is, whether there is a need to also challenge the Director’s decision will depend on the proposed ground(s) of application laid against the Board in an application of the present kind (see para 17 to 19 below).

17.It would appear the approaches mentioned in para 16(a) and (b) above are too “rigid” and hence may result in injustice in:

(1)  either having the effect of depriving an applicant of a right to two proper opportunities of being heard (which is how the system has been “designed”) (para 16(a) above);

(2)  or giving an applicant rooms to manipulate the system over a claim which at the end may likely be found (as has in fact been found by the Director) not to have substance (para 16(b) above).

The relatively more “flexible” approach (para 16(c) above) should be able to deal with the situations mentioned in sub-para (1) and (2) above.  I pause to note that, in a master appeal, when the court of appeal disagrees with the judge (who earlier disagreed with the master), the usual order is not to remit the matter back to the judge (or master), but to affirm/restore the master’s decision. 

18.Where it has been shown to be reasonably arguable that the Board has acted improperly in the sense of effectively depriving an applicant of his opportunity to be heard a second time (para 16(a) above), an application for leave to apply for judicial review may properly be brought against the Board alone.  Typical examples of this are bias and pre-determination, failure to hold an oral hearing when it was necessary to do so, and undue interruptions by the Board during an oral hearing.

19.On the other hand, where the complaint is merely reasonably arguable as regards irregularities other than the kind mentioned in para 18 above, it seems to make sense to require an applicant to show that there is/are good reason(s) to ask the Board to look into his claim yet again (by way of a judicial review).  A typical example is the Board’s failure to properly direct itself as regards one of issues raised (especially when the alleged improper direction is one which has already been considered and determined by the Director).

20.Bearing the above in mind, I turn to consider the grounds put forth against the Board in this application.

(b)   The Board’s decision

21.The applicant has helpfully in his written submissions given the following headings of complaint against the Board’s decision:

(a)  failure to alert the applicant to matters that require clarification or elaboration; thus depriving him of a proper opportunity to be heard regarding the same;

(b)  wrong interpretation of “severe physical or mental suffering”;

(c)  failure to adequately enquire into the country conditions of Bangladesh;

(d)  error regarding the concept of “state acquiescence”.

22.In relation to para 21(a) above, the Board has held an oral hearing, and the applicant appeared in person (though he was legally represented at the hearing before the Director).  Particular instances of the Board’s alleged failure to alert the applicant have been set out in the applicant’s written submissions:

(1)  the threat to the applicant’s life (after he left Bangladesh) was considered hearsay in nature (para 29, Board’s decision);

(2)  the “National Certificate” (concerning the applicant’s good character) was an inadequate document in that it is “vague and general” (para 32 to 33, Board’s decision);

(3)  an affidavit put forth on the applicant’s behalf (concerning false accusations against him) was found to be not genuine because of inconsistent and inaccurate contents (para 36 to 40, Board’s decision);

(4)  some of the above points have not been put to the applicant prior to the Board hearing.

23.It is true that the law requires the Director and the Board to act fairly and with commonsense in relation to information required by an applicant to prove his case.  On the one hand, the applicant cannot simply sit back and require the Director to disprove his case.  On the other hand, the Director and the Board may be required by fairness to probe further into an answer of, or an omission by, the applicant.  As to how the above should be applied depends ultimately on the facts and circumstances of each case.

24.The history of the applicant’s claim involves a “tier-one” hearing before the Director when the applicant was legally represented.  All of the subject-matters set out in para 22(1) to (3) above (though not necessarily all the documents mentioned therein) have been canvassed by the applicant back then, and were considered by the Director.  He ought to have known of their significance to his claim (and how they were treated in the Director’s decision).  In these circumstances, it was well within the Board’s proper discretion whether to probe further, or merely to consider the materials placed before it.  The same reasoning applies to whether the Board ought to have asked the applicant for direct evidence from his wife.

25.In relation to para 21(b) above, the applicant’s complaint is in gist:

“... the [Board] did not explain why a death threat cannot amount to mental suffering to the requisite level of severity. [It] focused only on physical torture ...” (para 34, applicant’s written submissions).

26.With respect, as the Director correctly points out, there is no substance in this complaint; the Board has expressly dealt with the issue.  It concluded that:

(a)  the evidence was insufficient to establish the applicant had suffered significant physical or mental ill-treatment;

(b)  the applicant’s personal experience did not amount to “torture”;

(c)  the applicant’s claim was based on hearsay, speculation and theory;

(d)  the applicant had failed to establish substantial grounds of believing that he would face a real, foreseeable and personal risk of torture.

(para 48 thereof)

27.In relation to para 21(c) above, the applicant argues that the Board has not adequately discussed (or discussed in detail) the country of origin information (“COI”). First, (as has been noted by the Director) the Board disbelieved the applicant’s assertions concerning the threat to his life (para 43 thereof).  It also regarded the applicant’s assertions concerning the lack of protection by the authorities to be unreliable (para 46 thereof).  In view of such findings, it was not beyond the Board’s discretionary power not to extensively investigate COI regarding the adequacy of police protection in Bangladesh.  Put in another way, it would be otiose to do so once the related evidential basis has been rejected.

28.In relation to para 21(d) above, in view of the conclusion reached by the Board (summarized in para 27 above), the complaint that the Board has not correctly understood the concept of “state acquiescence” has no substance.  The Director also (correctly) refers to the detailed analysis by the Director in this regard (para 32(5) and (6), Director’s written submissions).

CONCLUSION

29.None of the complaints is reasonably arguable; this application is therefore refused.

OTHER MATTERS

30.The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the decision and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

COSTS ORDER NISI

31.There is no apparent reason to depart from the usual rule that costs should follow the event.  There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of this application are to be paid by the applicant to the Director, to be taxed if not agreed.

32.The applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations (Cap 91A).

Ms Queenie Lau, instructed by John M Pickavant & Co, assigned by the Director of Legal Aid, for the applicant

Attendance of the putative respondent was excused

Ms Sara Tong, instructed by the Department of Justice, for the Director of Immigration