Asan Bun v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL549 /2019

[2022] HKCFI 1259

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 549 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 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:

Introduction

1.This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 6 February 2018 (the “Notice”) and the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated4 February 2019 (the “Decision”).

2.The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board[1] and the Applicant has invoked those procedures.  The Director’s decision in the Notice was superseded by the Board’s Decision and are no longer susceptible to judicial review: Re Moshsin Ali[2].  For the benefit of the Applicant, the Court treated his complaints against the Director as if they were directed at the Board also. 

3.The Applicant is a national of Indonesia, now aged 27.  He arrived in Hong Kong on 31 March 2014 and overstayed his visa.  He was arrested on 7 January 2015.  On 27 January 2015, he raised a non-refoulement claim.

4.In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6].  By a Notice of Decision dated 6 February 2018, the Director rejected his claims under all four applicable grounds.  He appealed to the Board against the decision of the Director in the Notice. His appeal was dismissed by the Board’s Decision.  On 26 February 2019, he applied for leave to apply for judicial review of that Decision of the Board. 

5.The Applicant did not request an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

The Applicant’s case

6.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, his claim is based on his fear of being harmed and killed by a group of Muslims due to their differences in political and religious opinion.

7.The Applicant was born in West Kalimantan Province, Indonesia.  He is an Indonesian of Chinese descent and a Buddhist.  He is now residing in Hong Kong with a cohabitee and their daughter.  He has five years of working experience as a welding worker, glass-cutting worker and a cleaning worker. 

8.The Applicant alleged that on 25 February 2014 he had a discussion with his friend Heri in coffee shop about supporting a Chinese Buddhist candidate in the upcoming mayor election in his home town.  A group of seven or eight men, believed to be Muslims (“the Group”), engaged in an argument with Heri.  One of them attacked him and Heri with a machete.  Heri was hit and fell unconscious. The Applicant took Heri to the hospital on his motorcycle.  Then he went hiding in the forest.  Two hours later, one of his friends who witnessed the attack warned him on the telephone that the Group were looking for him at his house. The Applicant kept hiding in the forest for two days.  That friend also told him that he overheard the Group saying that they would track down the Applicant. That friend recommended him to flee to Hong Kong and financed his passage.

9.The Applicant said he did not make a report to the police because the police is corrupt and he did not have money to pay a bribe for his protection.  He said he could not relocate to another part of Indonesia because the majority of the population in the country is Muslim and the Group may be able to find him through their close network and the Front Pembela Islam (“FPI”).  In his Notice of Appeal (“NOA”), he added that he also fears harm from another religious group.

Finding of the Board

10.Despite some concerns about the credibility of his evidence, the Board gave the Applicant the benefit of doubt and accepted the centrepiece of his case[7].  It accepted that he and Heri had an argument with the Group, that Heri was injured, that he took Heri to the hospital and that the Group went to his house looking for him.  However, given that the Applicant was more quiet during the dispute, had done nothing other than taking Heri to the hospital, that the dispute occurred during the heightened tension of an election in 2014, and the passage of time, the Board considered there to be only a remote or speculative risk that the Applicant will face the proscribed harm from the Group for reason of his imputed political opinion or his connection with Heri.

11.As for the Applicant’s claimed fear of harm from the Group because he is ethnic Chinese and Buddhist, the only evidence produced by the Applicant was that he was told by two of his friends in Indonesia and a person from his home town he met in Hong Kong that “things were getting worse for non-Muslims”.  The Applicant could not refer the Board to any supporting Country of Origin Information (“COI”).

12.Having considered the credible COI, the Board accepted there is a real risk the Applicant may face societal harassment and/or discrimination from the Group or other members of FPI and/or Indonesian society more generally because of his ethnic origin and religion.  However, it considered that any harm arising to the Applicant from that harassment and/or discrimination would not be psychological or actual physical harm with such severity as would meet the high threshold to amount to proscribed harm.  Accordingly, the Board did not consider the Applicant would face a real risk of harm if refouled to Indonesia.

13.Applying the law applicable to non-refoulement protection under the USM, the Board was not satisfied that the Applicant had discharged the burden of proving his entitlement to protection under any of the four applicable grounds under the USM.  Hence, the Board dismissed the Applicant’s appeal.

The applicable legal principles     

14.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[8].

Grounds for judicial review

15.The Applicant did not state his grounds for judicial review in the Form 86 or in his supporting affirmation.  In response to the Court’s invitation by letter dated 13 December 2021, he advanced the following grounds and arguments:

(1)     The Director and the Board “erred in determining that there is no realistic prospect of success”.

(2)     The Board has not taken his “unique situation into account fairly or carefully”.

(3)     The Decision was wrong and biased.  The Board did not rely on any facts of his case and purely targeted him for a situation which it has no first-hand experience.

(4)     He is entitled to appeal against the decision of the Director in his Notice and the Decision of the Board out of time.

(5)     He was not given language and legal assistance during the appeal before the Board.

(6)     The Board was biased and made its Decision on assumptions without allowing him an opportunity to explain or to elaborate.  This is especially the case since he believed the Board challenged him on credibility.

(7)     He was deprived of his basic right as a litigant to be informed of his legal rights, and to be duly informed of all information.  The Decision has never been read or translated to him in his first language.  Without being advised properly of the reasons for rejection of his claim, he could not provide full grounds for an appeal.

(8)     “The [Decision] was biased and was made based on the wrong case management power.  The Department was merely trying to dispose of his case as quickly as possible and therefore did not carefully consider all the information and evidence available.”

Ground (1) – The Director and the Board erred in determining that there is no realistic prospect of success”

16.This ground is ambiguous.  Neither the Director nor the Board had made such a determination.  The reality of the situation is that the Director rejected the Applicant’s claim for non-refoulement protection.  This is the determination of the Director as stated in the Notice.  As explained in paragraph 2, the decision of the Director is not reviewable.  The Applicant appealed against that decision to the Board.  The determination of the Board as stated in the concluding paragraph of its Decision is:

“I reject the Appellant’s non-refoulement claim as not substantiated on all Applicable Grounds. I confirm the Decision both for the Appeal and for the Petition.”

17.The Applicant disagreed with the finding of the Board.  The finding is a finding of fact solely within the province of the Board which the Court would not interfere save for errors of law, procedural unfairness or irrationality in its Decision.  The Court would re-visit this issue in its overall scrutiny of the Board’s Decision.

Ground (2) - The Board has not taken his “unique situation into account fairly or carefully”

18.The Applicant gave no particulars as to what was the unique situation which the Board did not take into account.  As shown in paragraphs 10 to 13, the Board fully set out the Applicant’s case, its finding and gave reasons for its finding.  The Board has fairly or carefully considered the Applicant’s case, including the uniqueness in his case. 

Grounds (3), (6) and (8) - The Board was bias

19.In essence, the Applicant complained that the Board (i) did not make its decision according to the facts of the case, (ii) acted on assumption, (iii) did not allow him the opportunity to elaborate and (iv) hastily disposed of his case without due care and consideration.  He did not give particulars of his various heads of complaints.

20.There is no substance in the first head of his complaint.  As stated in paragraph 10 above, the Board gave the Applicant the benefit of doubt and accepted his evidence. It was on the basis of his evidence that it made its assessment that the Applicant will only have a remote or speculative risk of the proscribed harm.

21.It appears that the second head of his complaint is based on the Board’s refusal to accept his fear as genuine by relying on the COI, which presumably is what he called “assumption”.   The COI relied on by the Board are the International Religious Freedom Report for Indonesia published by the United States Department of State and The DFAT Country Information Report Indonesia 2017 published by the Australian Department of Foreign Affairs.  These are facts and not assumptions.  The COI are from credible and authoritative sources.  On the basis of the COI, the Board accepted in favour of the Applicant that there is a real risk that he may face societal harassment and/or discrimination from the Group or other members of FPI and/or Indonesian society more generally because of his ethnic origin and religion.  He had no objection to the Board’s acceptance of such COI. Other than stating his subjective fear and belief, he offered no contradicting evidence or COI.  On the basis of the COI and on the totality of the evidence, including those mentioned in paragraph 10 above, the Board assessed that any harm arising to the Applicant from that harassment and/or discrimination would not be psychological or actual physical harm with such severity as would meet the meet the high threshold to amount to proscribed harm.  These are also finding of facts and not assumptions.

22.As for the third head of his complaint, it is clear from the Decision that the Applicant testified before the Board and engaged in discussion with the Board.  As noted in paragraph 32 of the Decision, the Applicant corrected himself about the proper name of FPI.  He clearly had opportunity to elaborate his case before the Board.

23.His last head of complaint is just a bare assertion not supported by evidence, let alone particulars.  Having examined the Decision with anxious scrutiny, the Court was satisfied that there is no substance in this ground.

Ground (4) - The Applicant was entitled to lodge the application out of time

24.This ground is totally misconceived. There was no issue of late filing of the Notice of Appeal against the decision of the Director in the Notice.  There is also no issue of late filing of this application for leave to apply for judicial review of the Decision before this Court.

Ground (5) – Lack of legal and language assistance before the Board

25.The Applicant complained that he was not provided with legal and language assistance in pursuing his appeal and was not provided with legal representation before the Board.  There is no dispute that such assistance had been provided to the Applicant in preparing his NCF and in his screening interview before an immigration officer.

26.In Re Zafar Muazam[9], Re Zunariyah[10], Re Zahid Abbas[11], Re Tariq Farhan[12], and Re Lopchan Subash[13], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[14] nor the judgment of FB v. Director of Immigration[15] 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 Applicant was legal represented up to the conclusion of the screening interview, but not at the appeal before the Board.  The real question is whether the claimant is prejudiced for want of legal and language assistance.

27.The Applicant had the benefit of legal representation in presenting his case to the Director.  All the benefits that legal representation could have afforded him were contained in his written submissions, NCF and 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.

28.As for his complaint about lack of language assistance, as a matter of law, a claimant does not have absolute right to free language assistance at all stages of the proceedings. In Karamjit Singh[16], the Court of Appeal agreed with 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 benefit as and when he requires.  He has to find ways to cope with his disability and find assistance himself from among his friends and his ethnic community.  Indeed, the Applicant was able to file an adequately well written affirmation in English himself.

29.Furthermore, the appeal bundle is basically made up of his NCF, the record of his screening interview, and the Director’s Notice of Decision with the COI.  He knows what is contained in his NCF which was filled in by him with the assistance of an interpreter and the Duty Lawyer Service.  He knows what is contained in the record of screening interview which he attended with the assistance of interpreter and legal representation.  The record had been read back to him in his own language and he signed to acknowledge that he understood and agreed with its contents and that no amendment was necessary.  Recognizing the limitation in his foreign language ability and the importance of his claim, he ought to have taken notes, at least very brief ones, to remind him of what he had said or written rather than relying on the host country to provide him the convenience of interpretation at his fingertips. 

30.The Notice and COI are in English and unfortunately have not been translated.  As mentioned above, he has to find assistance himself from among his friends and his ethnic community.  The Notice was issued on 6 February 2018.  The oral hearing was conducted on 13 November 2018.  In between, he had more than nine months to find out what the appeal bundle is about, if he was at all serious in pursuing his non-refoulement claim.  He should not do nothing and expect the host country would translate the documents to him as and when he requires as if the host country were head-hunting for people of his expertise.

Ground (7) - deprived of his right to be informed of his legal rights and of all information

31.The Applicant complained that he was deprived of his right to be informed of his legal rights and all information.  He had obviously been informed of his right to appeal to the Board.  The Notice included a standard statement advising his right to appeal and the address of the Board.  It also included a blank Notice of Appeal.  He had also obviously been informed of his right to seek a judicial review and he timeously made the present application.

32.His real complain is that the Decision had never been read or translated to him in his first language and without being properly advised of the reasons for rejection of his claim, he could not provide full grounds for an appeal.  As explained in the above section, a non-refoulement claimant is not entitled to language and legal assistance at all stages of the non-refoulement proceedings and he suffered no prejudice through the lack of such assistance.  He has to exercise due diligence in prosecuting his claim and seek assistance beyond that which had already been provided to him from within his own resources and community.  In any event, he was able to lodge his Form 86, supporting affirmation and submission in English.  Furthermore, if he has raised any arguable issue, this Court would give him such legal assistance as is appropriate.  

Conclusion

33.As mentioned above, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  The Court had considered the specific grounds of application as advanced by the Applicant and found that there are no merits in those grounds.

34.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was also 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.  The Board assessed the Applicant’s claim on the basis of the case as asserted by him and the credible COI.  It was on that basis that the Board found that he would face no real risk of the proscribed harm if refouled to Indonesia.  In other words, he has failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The 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 and irrationality.  The Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success. 

35.For the above reasons, leave to apply for judicial review was refused.

Dated 29^th day of April 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