Khandoker Mithu v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 545/2019

[2022] HKCFI 452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 545 of 2019

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 To:

Leave to apply for Judicial Review refused.

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 1 February 2019 (the “Decision”).

2.The Applicant entered Hong Kong as a visitor under a false identity on 1 April 2013 and was permitted to stay until 2 April 2013.  He over-stayed thereafter.   He was arrested by the police and convicted of the offences of breach of condition of stay and making false statement.  He was sentenced to 5 months’ imprisonment.  After his discharge from prison, a removal order was issued against him on 27 May 2014.  He made a formal application for non-refoulement protection by lodging a non-refoulement claim form (“NCF”) dated 6 December 2017. 

3.In due course, his non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By a Notice dated 29 December 2017 (the “Notice”), the Director of Immigration (the “Director”) rejected his claims.  The Applicant appealed to the Board against the decision in the Notice.  His appeal was dismissed by the Board’s Decision dated 1 February 2019.  On 26 February 2019, he sought leave to apply for judicial review against the Decision and Notice. 

The Applicant’s case

4.The following is a summary of the Applicant’s case mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with the assistance of the Duty Lawyer Service and other documents prepared by the Immigration Department as contained in the hearing bundle before the Board.  In gist, he claimed that, if refouled to Pakistan, he will be at risk of being charged by the police for murder and eradicated by the Awami League political party (“AL”) because he is a member of Jamaat-e-Islami political party (“JeI”). 

5.The Applicant is a Bangladesh national, now aged 47.  He is married with two children living in District Gaibandha.  He is a member of JeI, which is in conflict with AL, the ruling political party.  In February 2013, JeI members held a demonstration against AL and the police, allegedly resulting in the death of three policemen.  Some JeI members were arrested. The Applicant claimed that he did not take part in the demonstration, but was being targeted by AL members. 

6.After the demonstration, AL members went everywhere to locate and assault JeI members for revenge.  The Applicant stayed in his home village without going out for most of the time.  However, he was located and beaten up by 10 to 20 AL members.  They took him to his shop, vandalised it and demanded monthly protection fee of 50,000 Bangladeshi Taka to be allowed to operate his shop.  They threatened to kill him and his family if he reported to the police.  The Applicant’s forehead was injured.  He did not go to the hospital or report the incident to the police as he feared that the police would frame him on charges which he had never committed.

7.The Applicant moved to Rangpur and Badda for two weeks.  Nothing eventful happened.  Then, he fled to Hong Kong on 1 April 2013.  He did not encounter any problems during his departure from Bangladesh. He feared that if he returns home, he would be charged by the police or eradicated by AL members.

The finding of the Board

8.The Board accepted the evidence given by the Applicant at the oral hearing before the Board and in his NCF as credible.  Based on the low frequency and intensity of threat brought by AL members, the Board found that AL members had no real intention to physically harm the Applicant.  If they really wanted to kill him, they could have easily done so in the attack.  The Board found that the purpose of the assault was to extort protection fees.  The Board found that there is no a genuine and substantial risk the Applicant will be killed or harmed by AL members.

9.The Board accepted the evidence in the Country of Origin (“COI”) produced by the Director.  Some of the information supported the Applicant’s concerns about ineffectiveness of the Bangladeshi police force.  But there was other objective evidence which showed that substantial efforts had been made by the government to monitor the conduct of the police and improve their professionalism.  The Board also noted that there are alternative avenues for the Applicant to seek justice in Bangladesh if the police do not hear his complaints.  On balance, the Board found that if the Applicant so required, meaningful state protection would be available to him.  The Board also considered internal relocation available to avoid the risk and harm.

10.Primarily for the above reasons, the Board was not satisfied that the Applicant has discharged the burden of proving he is entitled to non-refoulement protection on any of the applicable grounds under the USM.  Specifically, the Board found that the ill-treatment the Applicant had been subjected to was not sufficiently serious to reach the minimum level of severity for it to fall within the scope of risk covered by BOR 3 or within the scope covered by the Persecution ground.

The legal principles applicable to judicial reviews

11.The role 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.  The court will scrutinize 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[5].

Grounds for judicial review

12.The Applicant advanced the following four grounds of appeal in his notice of application for leave to apply for judicial review (Form 86):

(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.

13.Though not listed as a ground, the Applicant mentioned in the Form 86 under “Background of the Applicant” that “he was not given an opportunity to keep forward his submissions in an oral hearing nor he was invited to submit written submissions”[6]. He also complained that the Board significantly relied on news which is not officially recognized or is hearsay, and cases which are out-dated, resulting in the Board making groundless speculations that it is safe for him to return to Bangladesh[7]. The Court understood that by “news” and “cases” the Applicant meant COI mentioned by the Board in the Decision.  The Court treated his first complaint as his elaboration of his second ground, ie procedural unfairness; and his second complaint as his fifth ground, ie erroneous reliance on COI.

14.In his supporting affirmation filed on the same day, the Applicant repeated his argument about not being given an opportunity to keep forward his submissions and about erroneous reliance on COI.  Thus, altogether there are five grounds of application.

15.At the hearing, the Applicant admitted that he wrote the affirmation and submission himself and that he has some working knowledge of the English language.  The grounds of application in the Form 86, the supporting affirmation and his submission were reasonably well-written.  The Court had seen these grounds in other applications. Probably, these grounds had been duplicated by the Applicant.  Anyway, he admitted he is able to read, write and understand English and express himself adequately in English.  He has a reasonably good working knowledge of the English language. The Applicant accepted that he understood the documents contained in the hearing bundle before the Board, namely his NCF, record of interview and COI, though they were not written in his first language.  

Ground (1) – Unlawful exercise of discretion

16.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 could not be a valid ground for application for leave.  If the Applicant did not satisfy the requirements 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.  The sole basis of his argument under this ground advanced at the hearing is that he had problem to relocate elsewhere within Bangladesh. That was a challenge of the finding of fact by the Board.  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

17.Despite the Court’s request, the Applicant was unable to give particulars of the unfairness alleged.  Doing the best it can, the Court identified one possible basis of his complaint.  He complained in paragraph 6 of Form 86 that he was not given an opportunity to keep forward his submissions in an oral hearing nor he was invited to submit written submissions.”   He repeated this complaint in paragraph 5 under “Factual Background” in his supporting affirmation filed on the same day.  This is not true.  As the Decision shows, he testified and answered the Board’s questions.  At the hearing, he confirmed he was allowed to address the Board and make submission.  He even confirmed to the Court that there was nothing unfair in the proceedings before the Board and all that he wished was to be allowed to stay in Hong Kong.  The Court was unable to identify any other basis to support a complaint of procedural unfairness.  There is no substance under this ground.

Ground (3) – unreasonableness and irrationality

18.The Applicant failed to particularise or identify what he alleged is unreasonable or irrational.  All that he could say is that he disagreed with the Decision.  His complaint could only be treated as an overall or general complaint about irrationality and unreasonableness in the Board’s finding.  This ground is therefore a complaint against the finding of fact by the Board.  As mentioned above, 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.  In an application for judicial review, the Court will only scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality.  

19.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; correctly identified the issues 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 her 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 elements in the Decision.  The Decision was utterly without fault.

Ground (4) – Breach of greater care and duty owed to a self-represented claimant

20.The Applicant did not particularise the duty and the breach in Form 86 or his affirmation. At the hearing, he explained what he meant was that the Board was in breach of this greater duty of care by failing to provide him with legal representation.

21.In Re Zafar Muazam[8], Re Zunariyah[9], Re Zahid Abbas[10], Re Tariq Farhan[11], and Re Lopchan Subash[12], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar[13] nor the judgment of FB v. Director of Immigration[14] 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 assistance.

22.The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter in preparing his NCF and at the screening interview.  All the benefits that legal representation could have afforded him were contained in his written submissions, the NCF and his answers in the screening interview given under legal advice.  All these had been presented to the Director, which were then presented to the Board.  Despite he was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded him were before the Board.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board. The Applicant suffered no prejudice due to lack of legal representation before the Board.

Ground (5) - Erroneous reliance on COI

23.The Applicant complained that by reason of its reliance on outdated COI which is not officially recognized or is hearsay, the Board made groundless speculations that it is safe for him to return to Bangladesh.  One of the reasons of the Board’s Decision is that according to the COI, state protection and internal relocation are available to the Applicant to prevent or avoid the risks.  The COI relied on by the Director and the Board are all from official, authoritative and credible sources, including Country Report on Human Rights Practices for 2016: Bangladesh published by the United States Department of State; The World Fact Book, published by United States Central Intelligence Agency; Country Information and Guidance - Bangladesh: November 2014 and Country of Origin Information (COI) Report on Bangladesh dated 31 August 2013 published by the Home Office of the United Kingdom; and other news reports and articles.  The information is contemporaneous and not outdated.  Having regard to the nature of the information, it must contain an element of hearsay.  The people responsible for compiling and publishing the information are usually people acting under a duty owed to public authoritative bodies to provide reliable information.  The information is credible.  Furthermore, the Board will carefully consider the information and give it such weight as it thought fit having regard to the nature of information, the circumstances the information was obtained etc.

24.Other than a bald assertion of unreliability, outdated information and hearsay, the Applicant provided no particulars, not even any hint, as to what are untrue, not to mention his failure to provide any publication contradicting these COI.  The Court considered the complaint about procedural unfairness is absolutely groundless.

Conclusion

25.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 16^th day of February 2022.

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] [2018] HKCA 524 at para 14(1)

[6] Paragraph 6 of Form 86

[7] Paragraph 7 of Form 86

[8] cacv 2/2018, (unreported) 23 March 2018

[9] [2018] HKCA 14

[10] [2018] HKCA 15

[11] [2018] HKCA 17

[12] [2018] HKCA 37

[13] (2004) 7 HKCFAR 187

[14] HCAL 51 of 2007