Shahid v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 2738/2018 on BabelCite. This High Court CFI judgment.
1. This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 15 November 2018 (the “Decision”).
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HCAL 2738/2018 [2021] HKCFI 2050 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2738 of 2018 BETWEEN
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
Order by Deputy High Court Judge To:
Observations for the Applicant (Order by Deputy High Court Judge To): Introduction 1.This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 15 November 2018 (the “Decision”). 2.The Applicant requested an oral hearing if his leave application is not granted on paper. An oral hearing was scheduled for him on 16 June 2021. He did not appear. The court staff managed to reach him on his telephone. He confirmed that the address on the notice of hearing was correct, but alleged that he had not received the notice. A second hearing was schedule for him on 29 June 2021. Again, he did not appear. Upon reaching him on the phone, he said that he had not received the notice of hearing as he had moved to a different address. He admitted he had not notified the court of his change of address. Having reviewed the papers, the Court considered this is an appropriate case for paper determination and made the following decision. 3.The Applicant is a Bangladeshi national. He was arrested by the police on 27 May 2007 for having entered Hong Kong illegally. He claimed to have flown from Bangladesh to Kunming on 22 May 2007 and then sneaked into Hong Kong from Shenzhen on 27 May 2007. He was referred to the Immigration Department. He lodged a torture claim on 30 June 2007 claiming that he is a supporter of the Awami League (“AL”) in Bangladesh and is in fear of being killed by supporters of Bangladesh Nationalist Party (“BNP”). 4.In due course, her non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4]. By a Notice of Decision dated 24 June 2013 and another notice dated 30 December 2016, the Director of Immigration (the “Director”) rejected all of his claims. His appeal to the Board against the decision in the two Notices was dismissed by the Board’s Decision dated 15 November 2018. The Applicant’s case 5.The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form (“NCF”) which was prepared by him with assistance of the Duty Lawyer Service. 6.The Applicant joined AL as an ordinary member in 1986 or 1987. He was promoted to the office of Publicity Secretary in the third tier of the party. His duty was to organize meetings for members and supporters and he reported directly to Billal. 7.BNP was in power since 1973 or 1974 to 1996 and again in 2001 to 2006. AL was in power between 1996 and 2001. From 2006 to 2008, Bangladesh was ruled by a caretaker government. AL became the ruling party since 2008. 8.The Applicant had a shop selling garments. It ceased business since BNP came into power in 2001. At about 2 pm on a day in 2001, his shop was damaged. At about 3 to 4 pm that day, he was sitting outside his house with his sister when BNP held a rally near his house. About 12 BNP members went to his house and attacked him. He was cut by a knife on the philtrum under his nose and was struck with sticks on his head, back and hands. He lost consciousness. He was treated by a village doctor and took 10 to 12 days to recover. He had bruises and suffered a fractured finger. 9.He was scared of BNP and went hiding from 2001 to 2007 in Jhenaidah, Alamdanga and Dhaka. He fled to India for two to three months in 2001. He learned that Billal was stabbed by BNP members with a long knife in his home village. He thought the police would not take action against BNP members and that BNP members would take revenge on him and his family. He believed he could not relocate elsewhere in Bangladesh because of lack of financial support. So he fled Bangladesh on 22 May 2007 and went to Kunming. From there, he went to Shenzhen and then sneaked into Hong Kong. 10.He maintained contact with his wife and elder sister. They told him although AL is now in power, it was not safe to return home because BNP was working with the Communist Party and they had been abducting and killing people. The finding of the Board 11.The Board considered the Applicant’s evidence questionable and unreliable. It did not find the Applicant credible. It was not persuaded even to the low standard required that the Applicant will face a genuine risk of harm if refouled to Bangladesh. Even on the Applicant’s own evidence, he had not been subjected to ill-treatment which reached the degree of severity required to establish a non-refoulement claim. The Board therefore found he had failed to establish even to the low standard required that he would face any ill-treattment in the future if refouled to Bangladesh. In short, the Applicant has failed to discharge the burden of proving his feared harm and risks are genuine. Thus, there is no factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM. 12.Specifically, in respect of the Torture Risk ground, the Board found that the past ill-treatment could not amount to torture as defined in Section 37U of the Immigration Ordinance and there was no evidence that any such ill-treatment was inflicted or at the instigation of or with the consent or acquiescence of a public official or anyone acting in an official capacity. These are essential elements which the Applicant must prove to establish a Torture Risk claim. On these findings, the Board was not persuaded that the Applicant has established there are substantial grounds for believing he would be liable to be subjected to torture if he is refouled. 13.Under the BOR 3 Risk ground, the Applicant has to establish the ill-treatment which he would face would attain a minimum level of severity and that he faces a genuine and substantial risk of being subjected to such treatment. Based on the 2001 incident relied on by the Applicant, the Board was not satisfied that the Applicant has discharged the burden of proving such ill-treatment. 14.In respect of the Persecution Risk ground, having rejected the Applicant’s evidence as incredible, the Board was unable to attach any weight to his evidence that he had been assaulted by BNP supporters in the 2001 incident. Furthermore, after having been more than 17 years away from his home village the Board doubted if the BNP supporters were still looking for him. 15.In respect of the BOR 2 Risk ground, the Board found that on the facts, Articles 2(2) to (6) are not engaged. Grounds for judicial review 16.The Applicant advanced the following four grounds of appeal in his notice of application for leave to apply for judicial review (Form 86):
Ground (1) – Unlawful exercise of discretion 17.Under this ground, the Applicant accused the Board of having unlawfully fettered its discretion by refusing his appeal on the grounds that he did not satisfy the requirement for non-refoulement protection. This cannot be a valid ground for application for leave. If the 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 two notices and dismiss his 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. Having examined all the grounds and rigorously examined the Decision and the papers, the Court was satisfied that the Decision could not be criticized for the above reasons. Ground (2) – Procedural unfairness 18.The basis of the Applicant’s complaint about procedural unfairness is that the majority of the documents in the appeal bundle used before the Board were in English and the Applicant did not have sufficient time to prepare for the hearing due to his limited skills in English and he being unrepresented.
20.Similarly, a claimant does not have absolute right to free language assistance at all stages of the proceedings. In Karamjit Singh[12], the Court of Appeal agreed wtih the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required. It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. In the circumstances, he has to live with or cope with his language disability. He cannot expect to have the luxury of any documents to be fully translated into his first language for his convenience and benefit. He has to find assistance himself from among his friends and ethnic community. Indeed, the Applicant was able to file an adequately well written affirmation in English himself. 16. The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter at the screening interview and in presenting his case to the Director. He also had the services of a qualified interpreter at the oral hearing before the Board. Though the appeal bundle is in English, it is basically made up of his NCF, the records of the two screening interviews and the decision of the Director in the two Notices, including the COI. The two Notices of the Director were issued to him in June 2013 and December 2016. It was not until 1 August 1 2018 that the oral hearing was held. The Notices are in English and, unfortunately, no translation was provided. He cannot expect these documents to be fully translated for him. He had in between the issue of the Notice and the oral hearing about two or five years to seek assistance from among his own circle. Indeed, he had access to interpretation services as reflected in his affirmation and Form 86 filed in connection with this application which were very well written in English. Also, he could have sought assistance from the interpreter at the oral hearing before the Board. 17. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation or interpretation in the process before the Board. His complaint about lack of legal and language assistance is over-exaggerated 18. Part of the Applicant’s complaint about procedural unfairness is that the COI relied on by the Board was not officially recognised and made up of hearsay and was outdated, which resulted in the Board making groundless speculation that it was safe for the Applicant to return to Bangladesh. He quoted three COI, namely USHR 2010, USRF 2010 and the Report on the International Commission of Jurists and argued that had these COI been considered by the Board, it would have been sufficient to support a finding of a consistent pattern of human rights abuses in Bangladesh and there is a lack of state protection. The Court was unable to identify the first two COI and the relevance of the third. The Applicant was also unable to produce the COI for the Court’s consideration. 19. The COI relied on by the Director and the Board are all from credible and official sources, including Country Report on Human Rights Practices for 2015: Bangladesh and Country Report on Human Rights Practices for 2014: Bangladesh published by the United States Department of State; The Wold Factbook, published by United States Central Intelligence Agency; Country Information and Guidance on Bangladesh: Background information, including actors of protection, and internal relocation published by the United Kingdom Home Office in November 2014; Country of Origin Information (COI) Report on Bangladesh dated 31 August 2013 published by the United Kingdom Government; and other news reports and articles. Other than a bald assertion of unreliability and hearsay, the Applicant provided no particulars as to what are untrue, not to mention his failure to provide any publication contradicting these COI. 20. The Applicant complained about the weighting put on the COI and that the Board was cherry-picking. This is basically a finding of fact which is solely within the province of the Board as the tribunal of fact. In any event, in view of its finding that the Applicant does not face a real chance of harm of any kind for any of the reasons claimed, the Board’s finding on availability of state protection and internal relocation was unnecessary for its decision. 21.The Applicant complained about the failure to call for psychological and psychiatric evaluations and reports at any stage of the screening process or the appeal. There was not an iota of evidence suggesting that the Applicant had been subjected to psychiatric or psychological ill-treatment which would make it necessary for the Director to conduct such investigation. This complaint is wholly frivolous and vexatious. 22.In his supporting affirmation, the Applicant complained that it was unfair for the Director to have made a decision on his BOR 2 claim without conducting a screening interview. This is factually wrong. A screening interview was conducted on 21 November 2016 in relation to, inter alia, his BOR 2 claim. It was after this interview that the Director issued the Notice dated 30 December 2016 dismissing his BOR 2 claim, BOR 3 claim and Persecution claim. The immigration officer had conducted an earlier screening interview on 5 June 2013 in relation to his torture claim after which the Notice of 24 June 2013 was issued. 23.The Court considered the complaints about procedural unfairness is groundless. Ground (3) – unreasonableness and irrationality 21. As for the overall or general complaint about irrationality and unreasonableness in the Board’s finding, these grounds of complaint are against the finding of fact by the Board. The function of the court in judicial review is not to re-assess the non-refoulement claims 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[13]. 22. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, 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; the burden of proof and standard of proof; and observed a very high standard of fairness. It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality. There were no such vitiating elements in the Decision. The Decision was utterly fair and without fault. Ground (4) – Breach of greater care and duty owed to a self-represented claimant 23. The Applicant did not particularise the duty and the breach. In the light of the conclusion reached in respect of the other three grounds, the Court was unable to find there was any breach of the greater duty of care owed to the unrepresented Applicant. Conclusion 24.For the above reasons, the Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review. Accordingly, leave to apply for judicial review was refused. Dated 16thday of July 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 [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 [10] (2004) 7 HKCFAR 187 [11] HCAL 51 of 2007 [12] CACV 78/2018 [13] [2018] HKCA 524 at [14(1)] |
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