Deloar Hossain v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 982/2017

[2018] HKCFI 2192

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 982 of 2017

BETWEEN

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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 34-year-old national of Bangladesh who arrived in Hong Kong on 17 August 2006 with permission to remain as a visitor up to 31 August 2006 when he did not depart but instead overstayed until he was arrested by the police on 21 August 2008.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by supporters of rival political party Awami League (“AL”) and by the Purbo Banglar Communist Party (“PBCP”) for refusing to pay protection money.  He has since been released on recognizance pending the determination of his claim. 

2.The applicant was born and raised in Alamdanga, District Chuadanga, Khulna Division, Bangladesh.  After leaving school he opened a shop selling fabrics and became a supporter of the Bangladesh Nationalist Party (“BNP”) regularly attended their meetings and rallies.

3.One day in 2003 during a BNP rally when supporters of AL started to throw stones and bricks at BNP supporters, the applicant fell and injured his knees.  On another occasion in 2006 in a BNP rally he was hit by objects thrown by AL supporters, and there were many occasions that he had to close down his shop during strikes organized by AL supporters.

4.In about 2005 PBCP members started to extort money from shopkeepers, and when the applicant refused to pay them any money, he was threatened that he would be killed.  One day in July 2006 his shop was set on fire, and afterwards he received a phone call from the PBCP people who claimed to have set fire to his shop and that he would be killed if he still failed to pay them money, and when the applicant found the police unhelpful, he felt it was no longer safe to remain in Bangladesh, and so he fled to Dhaka and from there he departed for Hong Kong where he overstayed and then raised his torture claim which was later taken as a non-refoulement claim upon the commencement of the Unified Screening Mechanism, and for which he completed a Torture Claim Form (“TCF”) and a Supplementary Claim Form (“SCF”) on 20 March 2014 and attended screening interviews before the Immigration Department with legal representation from the Duty Lawyer Service.   

5.By a Notice of Decision dated 5 September 2014 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

6.In his decision the Director found the low intensity and frequency of past ill-treatment from the AL supporters and the PBCP people indicative of a small future risk of harm to the applicant upon his return to Bangladesh, that he was not specifically targeted by either of them and that since his departure all these years that it is unlikely that they would still have any adverse interest in him, that the absence of any official involvement that state or police protection would be available to him if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population spread across a vast territory that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other area away from his home district such as Dhaka where it would be difficult if not impossible for the AL supporters or PBCP people to locate him.    

7.By a Notice of Further Decision dated 9 May 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation for him to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

8.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal he filed 18 September 2014, and for which no oral hearing was scheduled by the Board which dealt with the appeal on paper.  On 27 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found clashes and conflicts between supporters of BNP and AL as the two largest political parties were common in Bangladesh that the applicant was not specifically targeted during those incidents when objects were thrown at him by the AL supporters which cannot be said to be torture or persecution under any of the applicable grounds, whilst PBCP was an outlawed political party and hence their extortion of money from the applicant and setting of fire to his shop which if true would be subject to the law and police prosecutions and would not constitute torture or persecution under any of the applicable grounds either, and concluded that the applicant has failed to substantiate any claim for non-refoulement protection.

10.On 28 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in it he put forward the following grounds for his intended challenge:

(1)  that the Board erred in failing to maintain high standard of fairness by not holding an oral hearing to allow the applicant an opportunity to put forward his case;

(2)  that the Board erred in approaching the matter by simply trying to see whether he could ‘find fault with the decision of the Immigration Officer’ when the Director of Immigration was in fact excused from attending the appeal hearing which shows that it is a general practice of the Board to not question or find fault with the decision of the Director; and

(3)  that the Board failed to apply the minimum standards of procedural fairness by not taking into consideration that the applicant was not legally represented before the Board and has insufficient legal knowledge which could jeopardize his representation in the appeal process, and for failing to inform the applicant that he could complain.

11.For his complaint under ground (1) of the Board not holding any oral hearing for him to put forward his case, it was clearly stated by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277, CACV 115/2013 that there is no absolute entitlement to an oral hearing, and that it is ultimately a question of fairness in the circumstances of each case, of which Cheung CJHC elaborated in paragraph 26 of his judgment:

“ … there is no absolute right to an oral hearing. Amongst other things, the question whether an oral hearing should be afforded must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision (in terms of its outcome and consequence), the issues involved, and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations.”

12.In deciding that an oral hearing was not necessary to consider the applicant’s appeal, the Board already had those principles set out in ST v Betty Kwan, supra above in mind as it explained in its decision:

“ 4. In this Board, the whole case will be considered afresh based on all the documents placed before me. I have considered the general principles and circumstances under which an oral hearing is required as set out in CACV 115/2013. There is no absolute right to an oral hearing. Whether a hearing is necessary will depend upon the subject matter and circumstances of a particular case and the nature of the decision to be made. I decided not to hold a hearing because, after a preliminary review of the whole case, I found that no worthwhile and effective representation could be made. I am satisfied that this appeal can justify be determined without a hearing.”

13.In his Form 86 the applicant referred to various authorities but did not elaborate how they applied to his case regarding this complaint of his, nor did he identify any further materials or representations that he would have put before the Board at an oral hearing to advance his case.  Even now in his application now before me including an oral hearing almost a year after the Board’s decision that he did not make any further or additional representation in support of his claim.

14.It is clear from the Director’s decision that the applicant with the assistance of legal representation did provide all his information and representation in both his TCF and SCF as well as two screening interviews before the Immigration Department with ample opportunity to fully present his claim before the Director, and that when he was later invited by the Director to submit additional facts relevant to his claim including BOR 2 risk that he did not find it necessary to do so, while in his subsequent appeal to the Board his grounds of appeal were in general in line with the basis of his claim as contained in his TCF as summarized in paragraphs 2 – 5 of the Board’s decision, of which the applicant never claimed to be incorrect or inaccurate nor found necessary to supplement either in his Form 86 or his supporting affirmation or at his oral hearing in his application now before me.  In the premises I find no useful purpose would be served by an oral hearing as found by the Board in his appeal process, and that there is no basis to support the complaint of procedural unfairness.

15.As for his complaint in ground (2) of the Board having erred in its approach of his appeal without the attendance of the Director, I fail to see any relevancy or rationale for involving the Director in the process of his appeal, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how that would support his claim that the Board had approached his appeal by simply to see if it could find fault with the decision of the Director.  There is simply no basis or merit in this complaint of the applicant.  

16.For his complaint in his last ground of the Board failing to apply high standards of fairness without taking into consideration of him not being legally represented and for not informing him that he could complain, it has been held by the Court of Appeal that 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 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: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; and Re Zafar Muazam [2018] HKCA 176.

17.The applicant already had the benefit of legal representation in presenting his case to the Director, and given the nature of his claim which the Board was able to deal with his appeal and clearly did so as a rehearing independently of the Director’s decision, I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

18.In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

19.For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 28^th day of September 2018.

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