Hossain Mohammad Billal v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 486/2019

[2021] HKCFI 177

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 486 OF 2019

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 submission by the Applicant in open court.

Order by Deputy High Court Judge C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decisions of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1982, is a national of Bangladesh.  On 14 April 2015 he was arrested in Hong Kong by the police for illegal remaining and referred to the Immigration Department for investigation.  On 17 April 2015 he lodged a non-refoulement claim and was subsequently released on recognizance.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [27-37] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by members of the Awami League (“AL”) political party if he returns to Bangladesh.  He was a member of the Bangladesh Nationalist Party (“BNP”) and participated in rallies and meetings of the party on a regular basis.  The AL came to power in about 2008 when it won the general election and started to persecute BNP members.  In 2010, a man named Apel (who was very close to the leader of AL) and about 8-10 men came with weapons (such as knives, axes, bamboos sticks and machetes) to the house of the applicant.  They beat him up with bamboo sticks and bare hands and vandalized his house.  A week later, Apel came to his house again when he was not at home.  They threatened his wife that they would kill him when they saw him.  The applicant fled from his village to Dhaka the following day and stayed there until February 2015.  When he learnt that his wife had been forced to disclose his whereabouts, he concluded that it would not be safe for him to remain in his country.  He therefore took a flight to Guangzhou in February 2015 and then sneaked into Hong Kong by boat.  He only applied for non-refoulement protection after a month and a half as he did not understand the process [36].

The Director’s decision

4.By a notice of decision dated 23 November 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The decision covered torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4].  The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

5.The applicant attended a hearing before the Board on 25 October 2018.

6.By a decision dated 30 January 2019, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the applicant’s claim at para [39-78] of its decision.  In a nutshell, the Board found his claim not credible and cast doubt on the applicant being an active member of the BNP [70] in the light of his limited and faulty knowledge of the political situation in Bangladesh and material inconsistencies in his claim.  He was also unable to provide any proof of his membership of the BNP [46]. He contradicted himself as to whether his wife had disclosed his whereabouts to Apel.  His contradiction undermined his reasons for leaving his country and indeed his entire claim.  His reasons for leaving Bangladesh are not what he claims [74].  The Board noted that while it was not necessary to consider the issue of relocation, it in any event made the observation that he could return safely to Dhaka where he lived in safety for 5 years from 2010-2015 [77].

8.Having considered the totality of the evidence before it, the Board concluded that the applicant failed to establish that he would be exposed to a real risk of proscribed harms [78].

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 20 February 2019 for leave to apply for judicial review of the decisions of the Director and the Board.  He did not request an oral hearing.  The application is therefore considered on the papers.

10.In the Form 86, the applicant did not set out any ground for judicial review.  In his affirmation in support, he attached a 6-page “Back Grounds (sic)” consisting of 14 paragraphs with the decisions of the Director and the Board.  His complaints can be understood and summarized as follows:

(1)  he does not understand the English language;

(2)  he was not given sufficient time to seek language assistance to read the hearing bundle for the hearing before the Board;

(3)  the interpreter at the hearing made translation mistake causing the inconsistencies in his evidence;

(4)  when he talked 10 minutes, the interpreter finished his translation in 2 minutes;

(5)  he could not submit documents to support his case because he was only concerned about his life when he fled his own country;

(6)  the Board’s evaluation of his knowledge of political situation in Bangladesh is wrong;

(7)  the Board is wrong not to believe him.

Discussion

11.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

12.When the applicant pursued his appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the court examines the decisions of the Director and the Board, it is unnecessary to delve into the decision of the Director.  This Observations for the Applicant will only focus on the latter’s decision.

13.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant’s claim and his true reason for fleeing his country.  On the factual findings, there cannot be any basis for the applicant’s fear.

14.As mentioned above, assessment of evidence and risk of harm are primarily within the province of the Board and the Director.  This court will not interfere with the decisions unless there is a public law ground for the court to do so.

15.One main complaint of the applicant relates to his inability to understand the English language and the time for him to receive language assistance was short.  Moreover, the interpreter at the hearing made mistakes in his translation.  Another general complaint relates to his dissatisfaction of the Board’s adverse finding of credibility on him.  All his grounds have no merit.

16.It is well established that the high standards of fairness do not demand interpretation service being made available at any time the applicant desires: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658; and Din Shamas v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2019] HKCA 1403.

17.The complaint that he did not have sufficient time to understand the hearing bundle for his hearing before the Board has no justification.  There is no evidence when he received the bundle.  As required by the Principles, Procedures and Practice Directions of the Board (para 9.6) copies of the hearing bundle shall be sent by the Director to the Board and the applicant no later than 5 working days prior to the date of the hearing.  There is no suggestion of any breach of the Director’s duty in this regard.

18.The bundle mainly consisted of information he provided to the Immigration Department.  He should have assistance of the Duty Lawyer Service when he filled out his non-refoulement claim form and attended the screening interview.  He should be familiar with the information contained in the hearing bundle.  Moreover, he was assisted by an interpreter at the hearing before the Board.

19.Attempting to justify the contradictions in his claim noted by the Board, the applicant now put the blame on the interpreter at the hearing before the Board for his wrong interpretation.  There is no evidence in support of this bare assertion.  As he does not understand English language, he would not know whether the interpretation was correct or wrong.  His suggestion is only an assertion without basis or an attempt to reconcile the unreasonable inconsistencies in his claim.  If the applicant had found any improprieties or abnormalities of the interpreter (e.g. the interpreter used only 2 minutes to translate what he said for 10 minutes, as the applicant claims now) and had doubt about the correctness of the translation, he should have raised it before the Board.  No such complaint to the Board is noted.  This complaint about the lack of language assistance is wholly unmeritorious.

20.The applicant’s other complaints are relating to the evaluation of the Board on his failure to provide proof of his membership of BNP and the influence of AL in the area he lived.  These are entirely matters within province of the Board.  There is no reasonably arguable basis to challenge these findings.

21.The Board, with the benefits of hearing the applicant’s oral evidence and considering the objective COI, rejected the non-refoulement claim essentially on its adverse finding on the applicant’s credibility for the thorough and detailed analysis and reasoning set out in its decision.  I do not find any reasonably arguable basis to challenge the findings of the Board.

22.Even on his own case, he came to Hong Kong as his journalist friend suggested to him that he could come to Hong Kong to get protection here. In his affirmation, he sneaked into Hong Kong in February 2015 and he was arrested by the police on 14 April 2015 (see para 2 of his “Back Grounds” attached to his affirmation).  He did not lodge his claim of protection after his arrival in Hong Kong for about 1 1/2 months until he was arrested.  His conduct was inconsistent with someone in genuine fear for his life and safety.  He could also safely remain in Dhaka for 5 years before he left his country.  Moreover, he was not holding any senior position in BNP and was only involved in insignificant activities of the party.  There is no good reason why AP would still wish to pursue with him after so many years.

23.The Board engaged in a joint endeavour with the applicant and considered all relevant evidence including objective local and national COI of Bangladesh.  It gave the applicant a reasonable opportunity to state his case, and enquired into the issues appropriately.  There cannot be any criticism of its determination which is eminently reasonable.

24.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness.

Disposition

25.For the reasons given, there is no realistic prospect of success in the applicant’s intended application.  I refuse to grant leave to apply for judicial review.

Dated 28 January 2021

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