Mondal Ripon v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2815/2018

[2023] HKCFI 361

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2815 of 2018

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:

1.  Leave to amend the Form 86 to the effect that the Director of Immigration be named as an interested party granted; and

2.  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 Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 19 November 2018 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 23 March 2018 (the “Notice”).  Though the Director is named as a proposed respondent, no relief is sought in respect of the Notice or any decision of the Director. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Form 86 is amended to the effect that the Director is named as an interested party instead of as a proposed respondent.

2.The Applicant is a Bangladeshi national, now aged 45.  He entered Hong Kong illegally on 1 January 2016 and was arrested on the same day.  On 7 January 2016, he raised a non-refoulement claim.  In due course, his non-refoulement claim was assessed on all four applicable grounds 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 23 March 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.  On 19 November 2018, the Board dismissed his appeal (the “Decision”).

3.On 10 December 2018, he applied for leave to apply for judicial review of the Decision of the Board.  He 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

4.The Applicant has been a supporter of the Bangladesh Nationalist Party (“BNP”) since around 1995 but not a member of the BNP.  In 2007, about twenty members (the “assailants”) of the Awami League political party (“AL”) came to his shop and invited him to join the AL.  He refused.  Then they demanded protection money from him.  When the Applicant refused, the assailants attacked him with hockey sticks and a chopper and vandalised his shop.  They locked up his shop and threatened to keep the key unless he paid.  That was the only incident in which he was attacked.

5.The Applicant was taken to a private clinic for treatment.  He took 20 days to recover.  He reported the attack to the Tongibari Police Station, but the police refused to file his complaint, saying that he was from the BNP while the assailants were from the AL.

6.After some discussion with his friends, he paid the assailants 20,000 Bangladeshi Taka as protection money and they unlocked his shop.  Out of fear of the assailants, the Applicant did not resume operating his shop.  He went to stay with his maternal aunt in Munshiganj for three months.  During those three months, the assailants called him about a dozen times asking him to join the AL.  He refused.  But he never encountered them.

7.Then the Applicant moved to stay with his grandparents for three months.  During those months, he received a dozen more phone calls from the assailants asking him to join the AL.  He sold his shop secretly for 300,000 Bangladeshi Taka and then moved to stay in Dhaka between 2007 and 2015.  He worked as a carpenter in Jatrabari.  During the first two years in Dhaka, he received seven or eight calls from the assailants threatening to kill him unless he paid them money.  The frequency of calls declined.  He received no more calls after two years.  He never encountered the assailants in Dhaka.  But his parents told him that the assailants had been looking for him in his home from time to time.

8.Though nothing happened during his eight years in Dhaka, the Applicant was afraid that the assailants would be able to locate him eventually. He left Bangladesh for Thailand in mid-2015.  As he learned that the Thai government will not give him any protection, he returned to Bangladesh on 22 July 2015.  On the advice of his friends, he traveled to China and then sneaked into Hong Kong via Shenzhen on 1 January 2016.  While he is in Hong Kong, his parents told him that the assailants are still looking for him from time to time and advised him not to return to Bangladesh.

The finding of the Board

9.The Board found significant inconsistencies in the Applicant’s evidence which cast doubts on the reliability of his evidence.  In his written claim, he alleged that the threatening calls stopped two years after his arrival in Dhaka (ie around 2009); but at the hearing, he implied that the calls continued right up until the moment he left Bangladesh in 2015.

10.He also gave unclear and inconsistent evidence as to his reason for fleeing Bangladesh.  He asserted that he fled Bangladesh because his assailants are still eager to find him and he was afraid that one day they would find him and harm him.  As for the reason why his assailants were eager to do so, he said it was because AL is still in power, ie is the ruling party in Bangladesh.  He was only a supporter of the BNP and not even a member.  He did not have a profile since he left his village to cause him to be of continuing interest to the AL.  The Board accepted that he might have been traumatised by the single attack on him in his shop in 2007, but that could not explain why after eight years of peaceful life in Dhaka, he still felt the need to flee the country in 2015.  The Board considered that he was using the attack as ground for the purpose of claiming non-refoulement protection.  The Board found the Applicant incredible.  Hence, it was not satisfied that there was sufficient reliable and consistent evidence to show that the Applicant is at risk of harm for the reasons he claimed.

11.The Board noted from authoritative and credible Country of Origin Information (“COI”) that inactive members of the BNP who did not participate in any political activities were generally not targeted by the ruling AL party.  It was the Applicant’s own evidence that he was fond of the BNP but was not even a member of the BNP and had not participated in any political activities in Bangladesh for many years.  Hence, the Board assessed the risk of harm befalling on the Applicant at the hands of the AL from his locality or those in other localities to be very low.

12.The Board further found that even if the Applicant faced any risk upon his return, the risk could be avoided or reduced by seeking state protection and internal relocation.  According to the COI, internal relocation is permissible in Bangladesh.  On the evidence, the Applicant had safely relocated to Dhaka for eight years before.  The Board did not accept that his assailants would be able to leverage their connections with the AL to locate him outside his locality.  With his skill as a carpenter and his previous experience living in Dhaka, it would not be unreasonable to expect him to move to Dhaka upon his return[5].

13.For all these reasons, the Board dismissed the Applicant’s appeal.

The applicable legal principle

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[6].

Grounds of application

15.The Applicant advanced the following four grounds of judicial review in his supporting affirmation:

(1)  the Applicant was not educated;

(2)  no lawyer was provided to him for advice;

(3)  the Board decided his appeal on assumption, without even considering many serious evidence provided;

(4)  “reversal the decision of the Board and Director of Immigration as they both infer no case in absence of another evidence.”

Grounds (1):    The Applicant was not educated

16.That a claimant is not educated as such could not be a ground for judicial review.  Presumably, the essence of the Applicant’s complaint is that he was not provided with language in pursuing his appeal before the Board.

17.As a matter of law, a claimant does not have absolute right to free language assistance at all stages of the non-refoulement proceedings.  In Karamjit Singh[7], 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 a claimant 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 assistance himself from among his friends and his ethnic community.

18.As noted in paragraph 7 of the Decision, the Applicant appeared before the Board at the hearing of his appeal on 11 October 2018 and was assisted by an interpreter qualified in the Bengali and English language.  Though the proceedings were conducted in English, they were fully interpreted to him in Bengalese.  He made no complaint about availability and the quality of the interpretation.

19.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 English 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.

20.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 23 March 2018.  The appeal hearing was conducted on 11 October 2018.  In between, he had almost seven months to find out what the appeal bundle was 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.   There is no substance in this ground.

Grounds (2):    Lack of legal assistance

21.The Applicant complains that he was not provided with a lawyer to assist him.

22.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 Applicant was legally 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.

23.The Applicants had the benefit of legal representation in presenting his case to the Director.  All the benefits that legal representation could have afforded them were contained in their written submissions, non-refoulement claim form 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 appeal 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.  There is no substance in this ground.

Ground (3):     The Board decided his appeal on assumption without considering many serious evidence provided

24.The burden of proving his entitlement to non-refoulement protection is on the Applicant.  The essence of the Board’s reason in dismissing his appeal is that he failed to discharge the burden of proving the factual basis in support of his claim for protection.  Having examined the Decision with anxious scrutiny, the Court is unable to find any suggestion or indication, let alone evidence, of the Board acting on any presumptions or assumptions.  The Board did rely on some COI, such as the Country Information Report, Bangladesh published by the Australian Department of Foreign Affairs and Trade; the Country Policy and Information Note Bangladesh, 2018 published by the United Kingdom Home Office. The COI are from authoritative and credible sources.  The information in the COI are evidence and not presumptions.  It was open to the Board to make finding of fact based on the evidence in the COI.  That is solely a matter for the Board which the Court in judicial review will not interfere except where such finding involves error of law, procedural unfairness or irrationality.  This Court could not identify any such vitiating elements.

Ground (4):     “reversal the decision of the Board and Director of Immigration as they both infer no case in absence of another evidence.”

25.This ground is quoted verbatim above.  The Applicant is seeking to reverse the Decision of the Board and the decision of the Director in his Notice.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established procedures of appeal to the Board and the Applicant had invoked those procedures.  The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer amenable to judicial review: Re Moshsin Ali[15].

26.The basis of the Applicant’s attack on the Board’s Decision is that the Board inferred “no case in absence of another evidence”.  It is impossible to understand what is the “another evidence” which the Applicant is relying on.  In any event as indicated above, the burden of proving his entitlement to protection is on the Applicant and there is no evidence that the Board acted on any assumption or inference. There is no substance in this ground.

Overall view of this application

27.This application is in effect an appeal against the finding of fact by the Board dressed up as an application for judicial review.  As mentioned earlier, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The Court in a judicial review will not interfere with the finding of fact by the decision maker save where such finding is the result of errors of law, procedural unfairness or irrationality.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is 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 found the Applicant’s evidence incredible and rejected his evidence.  It was on that basis that the Board found that he had failed to prove the factual basis in support of his claim to non-refoulement protection under any of the four applicable grounds under the USM.  The Court could detect no error of law in the Decision.  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.

Conclusion

28.For the above reasons, the Applicant’s application for leave to apply for judicial review is refused.

Dated the 10^th day of February 2023

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