Nh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 850/2019 on BabelCite. This High Court CFI judgment was delivered on 12 September 2024.
1. This is the Applicant’s application by Form 86 filed on 27 March 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 22 February 2019 (the “2019 Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Further Decision dated 27 April 2017 (the “Further Notice”).
Cites 4 cases
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HCAL 850/2019 [2024] HKCFI 2483 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 850 of 2019
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge To dated 30 August 2024:
Observations for the Applicant: Introduction 1.This is the Applicant’s application by Form 86 filed on 27 March 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 22 February 2019 (the “2019 Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Further Decision dated 27 April 2017 (the “Further Notice”). 2.The Applicant is a Bangladeshi national. He entered Hong Kong as a visitor on 16 June 2006. He overstayed since 1 July 2006. He was arrested for overstaying and then sentenced to 14 weeks’ imprisonment on 7 January 2009. While serving his sentence, he made a non-refoulement claim on 19 February 2009. In gist, he claimed, if refouled to Bangladesh, he would be killed by people from Awami League political party (“AL”), as he had refused to resign from the post of joint secretary in a rival political party, namely the Bangladesh Nationalist Party (“BNP”). 3.In due course, his non-refoulement claim was assessed on all three applicable grounds then available under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2] and Persecution Risk[3] grounds. By his Notice of Decision dated 29 October 2014 (the “Notice”), the Director rejected his claim. His appeal against the Notice was dismissed by the Board’s Decision dated 22 December 2016 (the “2016 Decision”). He did not apply for leave to review the 2016 Decision. 4.On 15 March 2017, the Director invited him to submit additional facts, if any, relevant to his non-refoulement claim on all applicable grounds, including BOR 2 Risk[4]ground. The Applicant made further submissions to the Director together with 23 supporting documents (the “supporting documents”). 5.By his Further Notice, the Director rejected his BOR 2 claim. His appeal against the Further Notice was dismissed by the 2019 Decision, which was made by the Board constituted by the same adjudicator who made the 2016 Decision. He now seeks leave to apply for judicial review of the 2019 Decision. He was legally represented at the hearing before the Court and leave was granted for him to amend the Form 86. The Applicant’s case - under Torture Risk, BOR 3 Risk and Persecution Risk grounds 6.The Applicant is now aged 49.[5] He was born and raised in District Barisal, Bangladesh. He is single. He received 14 years of education in Bangladesh. He did not have any working experience. His mother and six siblings are living in Bangladesh. He joined the BNP as a member in around 1988 and was elected as a joint secretary in 2002, which was a senior position, for a term of five years. 7.On 16 December 2005, he was confronted by about 15 AL members. They asked him to resign from the post of joint secretary and leave the country. After a short argument, they attacked him for about three minutes and he lost his consciousness. He was sent to hospital and received stitches for two cuts on his chest. Upon discharge on 16 January 2006, he contacted a senior BNP leader who was also a member of the parliament (the “senior leader”) for assistance. The senior leader told him to make a report to the police. He reported the case to the Gournadi Police Station, but the officer told him that the AL leaders had instructed them not to offer him any assistance. He reported back to the senior leader. The senior leader said he would report to other BNP leaders and told the Applicant to wait for further instructions. 8.After a few days, the same group of AL members intercepted the Applicant at a bus stop and attacked him for about five minutes until he fainted. He was sent to a hospital and received stitches for some cut wounds at his throat and forehead. He was discharged after about 20 days. He made a report to the police. The police gave him the same response and refused to record his complaint. 9.Out of fear, the Applicant went to stay in Dhaka for about two months. Although his mother told him that the AL leaders were searching for him, nothing eventful happened while he was in Dhaka. However, he felt insecure because he thought not even his senior leader could help him. On 26 May 2006, he left Bangladesh for Kunming. He did not encounter any problems leaving Bangladesh using his Bangladeshi passport. After traveling to Guangzhou and then to Shenzhen, he came to Hong Kong via Lowu on 26 June 2006. 10.In 2009, his brother told him that he was framed for a false charge of assault in which all defendants were BNP members. Since the police could not locate him, they detained his brother for about a month but released him due to lack of evidence to charge him. In 2010, his brother told him that he was framed for another false charge of arson in which all defendants were BNP members. His family told him that many BNP members in the area were killed by AL members. In early November 2013, his family told him that the AL members were still occasionally looking for him. 11.The Applicant does not believe the Bangladeshi police or authorities would help him, as the AL is the ruling party. He does not believe internal relocation is viable, as he does not have financial resources to live in other areas and the AL members could locate him anywhere in Bangladesh through their powerful network. The finding of the Board in the 2016 Decision 12.The Board found the Applicant’s evidence unreliable, some of his answers were illogical and inconsistent. It also doubted the truthfulness of his testimony before the Board because he refused to disclose the information he gave to the United Nations High Commissioner for Refugees. From the history of his trip to Hong Kong and the length of his overstay before he made the claim, the Board drew the inference that he did not really come to Hong Kong to seek protection but to seek employment. 13.The Board did not accept the Applicant’s claim that state protection was not available as it was the Applicant who chose to leave Bangladesh without waiting for his senior leader to seek protection for him. On the basis of country of origin information (“COI”), it was satisfied that adequate state protection was available. 14.It found the Applicant’s dispute with the AL members was a private dispute and the pain and ill-treatment were not inflicted on him with the consent or acquiescence of a public official or other person acting in any official capacity or on account of a reason under the Refugees Convention. From the fact that he was free to leave Bangladesh using his passport, the Board found he was not targeted by the government. 15.The Applicant had left Bangladesh for ten years. The AL had become the ruling party in place of the BNP. Hence, the Board found the threat on the Applicant’s return no longer existed as there is no longer any purpose to prevent him from being a joint secretary of the BNP. 16.Applying the law applicable to non-refoulement protection, the Board found that the Applicant had failed to prove his entitlement to protection under any of the three grounds. Hence, it dismissed his appeal against the Notice. The Applicant’s case - under BOR 2 Risk ground 17.In response to the Director’s invitation, the Applicant made further submissions to the Director about five visits by AL members to his home in Bangladesh and lodged 23 supporting documents. 18.First, on 27 July 2016, AL members, including a prominent leader, visited the Applicant’s home in Bangladesh looking for him. As they could not find the Applicant, they abused his brother. 19.Second, on 7 August 2016, the AL members abused the Applicant’s brother and sisters. They demanded ransom of 100,000 Taka. When his brother objected, they attacked him with hockey sticks, wooden sticks, hands and legs. His brother sustained physical injuries requiring hospital treatment. 20.Third, on 15 August 2016, his brother and a BNP leader went to the Gournadi Police Station to make a report of the assault. The officer treated him rudely and refused to file a complaint. 21.Fourth, on 5 October 2016, five police officers came to the Applicant’s home with arrest warrants looking for the Applicant. 22.Fifth, on 12 November 2016, about 15 to 20 AL members looted and vandalised the Applicant’s brother’s shop. They beat his brother when he intervened. The police arrived after the AL members had left. Except for taking a statement from the Applicant’s brother, they took no follow-up action. The finding of the Board in the 2019 Decision 23.The Board determined the appeal without a hearing pursuant to paragraph 15 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme. Its 2019 Decision is very brief. It consists of ten paragraphs occupying marginally longer than two and half pages. After quoting the procedural background and referring to the annex containing the Applicant’s grounds of appeal, the Board held in Paragraph 9:
Legal principles applicable to judicial review 24.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. Grounds for judicial review 25.The Applicant advanced three grounds of review:
26.On the face, the 2019 Decision is unsupportable and the Applicant has advanced arguable grounds of review. Hence, the Court does not intend to give full analysis of the various limbs of the grounds of review advanced by the Applicant as the issues will have to be fully argued in the hearing of the review. Discussion: Ground (1) – Error in law: res judicata 27.Ms Tam, counsel for the Applicant, submits that the Board erred in law by: (1) erroneously considering itself bound by the principle of res judicata and then (2) relying on the previous refusal by the Director of the Applicant’s BOR 2 claim came to the conclusion that the Applicant’s political dispute had been dealt with under USM 404, ie the Director’s Notice and Further Notice and the Board’s 2016 Decision. In so-doing, the Board ignored its duty to make a de novo administrative decision. 28.The first limb of Ms Tam’s argument is fully supported by well-established authorities. In Re Kamaljeet Singh[6], the Court of Appeal held that the Director’s decisions and the Board’s decisions, being administrative decisions by administrative bodies, are not decisions by a judicial bodies and as such do not give rise to res judicata. Furthermore, even if the Board were a judicial body, the principles of res judicata and/or issue estoppel are not applicable in the context of non-refoulement claim because of the requirement of the high standards of fairness: see Secretary for Security v Sakthevel Prabakar[7], AW v Director of Immigration[8], Md Nazir Ahmed Sarkar v TCAB[9]. The 2019 Decision would be the result of an error of law if the Board did apply the principle in its 2019 Decision. Did it? 29.Under the second limb of her submission, Ms Tam reminded the Court of the two tier decision under the non-refoulement regime and submits that by relying on the previous refusal by the Director (ie the Notice, the appeal against which was dismissed by the Board’s 2016 Decision), the Board came to the conclusion that the Applicant’s “political dispute has been dealt with under USM 404” without carrying out a de novo assessment separate from the Director’s Further Notice and its earlier 2016 Decision. 30.With respect, counsel has misunderstood this part of the 2019 Decision. Any adjudicator would be familiar with the two tier decision making process under the non-refoulement regime and the basic principle that the hearing of the appeal, though so called, is a hearing de novo. If the second tier decision maker is bound by the decision of the first tier decision maker, such a system of appeal is illusory. The adjudicator was a very experienced adjudicator. It is highly unlikely that he would have made such a fundamental error. The Board did consider the additional documents, though it dismissed their relevance. It assessed the Applicant’s risk by testing it against the principle stated in TK v Michael C Jenkins. Reading the 2019 Decision, in particular its Paragraph 9, the Court does not think the Board had ever considered itself bound by the first tier decision of the Director in his Further Notice. Properly understood, when the Board said in Paragraph 9(i) of the 2019 Decision “that is res judicata”, it could not have meant the Applicant was bound by the decision of the Director in the Further Decision that he is not entitled to protection under BOR 2 Risk ground or had no basis to support his claim under that ground. Obviously, the Board mentioned the Director’s decision in the Notice as well as its 2016 Decision as a prelude to its discussions in the 2019 Decision dismissing the Applicant’s appeal against the Director’s Further Notice. 31.I think what the Board meant was that the Applicant was bound by the Board’s finding of fact in its 2016 Decision and not by the Director’s first tier decision in the Notice or Further Notice. These findings are summarised in Paragraphs 14 to 17 above, including that the Applicant was not credible, did not come to Hong Kong to seek protection, that his disputes with his enemies were a private dispute, that adequate state protection was available in Bangladesh and that he was not targeted by the government. Ms Tam accepts that as 2016 Decision and 2019 Decision were made by the Board constituted of the same adjudicator, the adjudicator may adopt his finding in the earlier decision when making its later decision. Were it otherwise, an adjudicator might have to be schizophrenic to find, for example, for the purpose of Torture Risk or BOR 3 Risk that the risk of harm is low and does not attain the minimum level of severity, but the same risk would amount to a real and more serious risk of arbitrary deprivation of the claimant’s life for the purpose of BOR 2 Risk. 32.The Board then went on and considered the new facts submitted by the Applicant, though dismissing them as irrelevant. I agree that the use of the term “res judicata” by the Board even in that sense is inept but it had not actually applied the principle in reaching its decision. I do not think the Board had ignored its duty to make a de novo decision. Whether it had adequately discharged that duty is another matter. That leads the Court to the second ground of review. Ground (2) – Illegality: taking into account irrelevant facts and failing to take into account relevant facts 33.The Applicant complained under this ground is that tainted by the error of law under Ground (1), the Board took into account the irrelevant consideration of res judicata and failed to take into account relevant facts and COI by dismissing the 23 additional documents listed in Appendix I of the Applicant’s submission as “purely general situation of Bangladesh”. Since the Court takes the view that the term “res judicator” was used by the Board as adopting its finding in the earlier decision when making its later decision which it is entitled to, the Court will focused on the Board’s failure to take relevant matters into account under this ground of review. 34.The issues raised in the Applicant’s claim under BOR 2 or his appeal against the Director’s Further Notice are distinct and separate from Torture Risk, BOR 3 Risk and Persecution Risk claims considered by the Board in its 2016 Decision. Very briefly and in essence, Torture Risk is about ill-treatment, physical or mental, inflicted on a person by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity; BOR 3 Risk is about genuine and substantial risk of the claimant being subjected to ill-treatment attaining a minimum level of severity; and Persecution Risk is about a well-founded fear of being persecuted on account of one of the grounds under the Refugees Convention. There are obvious overlaps under these three grounds. On the other hand, BOR 2 Risk refers to the risk of violation of a person’s inherent right to life under Article 2 of the Hong Kong Bill of Rights Ordinance. It is about the risk of being arbitrarily deprived of his life. As stated by the Directorate General of Human Rights Council of Europe in A guide to the implementation of Article 2 of the European Convention on Human Rights, “If there is a real danger that the person will be killed in the receiving country, in ways or circumstances which would violate Article 2 of the Convention if the killing occurred in a State Party to the Convention, the person may not be extradited or expelled (or “rendered”). … [T]his also applies if the threat to life comes from non-State parties in the receiving country, against whom the public authorities in that country would not, or could not, protect the potential victim.” The requirements for establishing a BOR 2 Risk claim are distinct and separate from those under the other three grounds, though there may still be some overlaps with those required to establish the other three grounds. In some cases where no additional evidence was filed, the overlaps may be sufficient to enable a determination to be made in respect of BOR 2 Risk. But the instant case is not. 35.Except for quoting TK v Michael C Jenkins[10] for the proposition that a claimant cannot establish a substantial ground for believing that he would be in danger of being subjected to torture simply by reference to a pattern of gross, flagrant or mass violation of human rights irrespective of the relevance of such situation to his personal concern, the Board without any elaboration, simply dismissed the additional documents as purely general situation of Bangladesh and ruled that the Applicant disclosed no new facts. Ms Tam submits that the additional documents disclosed that there were BNP members or leaders arrested and/or detained by the police, or were tortured during custody, and at least on one occasion, a BNP leader was shot dead after abduction. These news are capable of bolstering the Applicant’s credibility when he claimed that local AL members assaulted and threatened him twice before he fled Bangladesh. 36.However, the additional documents are all written in Bengali. There were no English translation. Ms Tam’s submission is based on the English description of the documents in the Appendix with no assurance as to its accuracy of that description. Without a proper translation or some language assistance, it is impossible to understand the contents of the documents, their relevance to the Applicant’s claim, the accuracy of their description in the Appendix and to make a decision to reject them. The Board gave no reason for rejecting the documents. 37.The immigration officer on behalf of the Director gave the following reasons for rejecting the documents. He said that the documents “described some general situation of Bangladesh, they do not contain information which is material to your particular claim, or support the specific allegations made by you in your claim which require corroboration by other evidence.” He did not explain how he came to know about the content of the documents and how he reached the above conclusion. But the same reason using almost identical words were used by the Board in its finding in Paragraph 9(ii). It is of course open to the Board to adopt the finding of the immigration officer in the Further Notice on its own independent assessment. But there is no suggestion that that was the case. Even if it was, the Board gave no reason for adopting that conclusion. 38.While the Court is sympathetic with the Board’s helplessness when faced with documents in a foreign language which it did not understand. But the high standard of fairness and the duty of joint endeavour require the Board to at least find out what the documents are and make a proper determination as to their relevance and usefulness to the Applicant’s claim other than brushing them aside as general situation of Bangladesh which do not contain information material to the Applicant’s claim. Even if they were information about the general situation in Bangladesh, it is some objective evidence against which the Board may test the credibility of the Applicant’s claim. The Board could have held an oral hearing to hear what the Applicant had to say about those documents and then decide if on that basis the documents are not relevant or call for further investigation and proper translation. It is therefore arguable that the Board had failed to take relevant matters into account and failed in discharging its duty of joint endeavour. 39.Another problem with the 2019 Decision is that the Board did not seem to have considered the five incidents mentioned in the Applicant’s submission. Those five incidents are events which occurred after the Applicant’s departure from Bangladesh ten years ago. The incidents suggest that the Applicant is still being sought after by members of the AL who have now risen to senior and more influential positions. It suggests that the Applicant’s brother was ill-treated because of the Applicant. The evidence may not be credible. But if that evidence is accepted, it may not only bolster the Applicant’s claim under the three applicable grounds, but also reflect on the likelihood of real risk of violation of the Applicant’s right to life, if refouled. No finding was made by the Board in that regard and no reason was given for rejecting the evidence. These are finding of facts for the Board, which this Court in a judicial review could not make on its behalf. 40.Despite the very generous and favourable construction given to the 2019 Decision as explained in Paragraphs 33 and 34, given the brevity of the 2019 Decision, this Court cannot shy away from saying that it does not know how on the basis of the facts found by the Board in the 2016 Decision it reached the conclusion that the Applicant’s political dispute has been dealt with under the three earlier decisions. Even if by those four reasons given in its Paragraph 9 the Board had made a de novo assessment, it was clearly not sufficient. In this sense, the Board’s 2019 Decision is clearly defective. Ground (3) – Procedurally unfair: Failure to conduct sufficient enquiry, hold an oral hearing and give adequate reasons 41.The Applicant’s complaint under this ground is that the Board rejected his supporting documents as irrelevant without conducting any enquiry to clarify and properly consider their relevance and in that regard failed to hold an oral hearing and give adequate reasons for its 2019 Decision. For reasons as explained in the preceding section, the Board had clearly failed to conduct sufficient enquiry and give reasons for its decision. 42.As for the Applicant’s complaint that the 2019 Decision was made without an oral hearing, there is no absolute right to an oral hearing[11]. In Chandradipathiyalage Nilantha Indika v Torture Claims Appeal Board[12], the Court of First Instance set out the following matters which the Board should bear in mind, citing the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme when deciding whether to hold an oral hearing.
43.Obviously, the interest at stake is grave. It is about life and limb. The Applicant submitted the additional documents in support of his claim under BOR 2 Risk ground. He must be of the belief that they are material. The Board considered otherwise and disregarded them. The documents are written in a language which the Board did not understand, though there is a description of the documents in Annex I. The documents appear to fall within category (b) (iii) and (iv) above. The least the Board could have done was to call for an oral hearing and let the Applicant explain what those documents were, his purpose of adducing the documents and how they would support his case. If after having received and considered such evidence the Board for good reason comes to the conclusion that they are irrelevant, it would be open to the Board to reject the documents. That would be a finding of fact which the Court may not intervene. But rejecting them without even making such minimal inquiries is a breach of the high standard of fairness and duty of joint endeavour. The Court is also not satisfied that adequate reason has been given for rejecting the additional documents which together with the five incidents mentioned in the Applicant’s submission represent the sole basis of his claim under this ground. Conclusion 44.For the above reasons, Grounds (2) and (3) advanced by the Applicant in the amended Form 86 are arguable. Hence, leave to amend the Form 86 is granted and the Applicant’s leave application as amended is allowed. The Applicant shall comply with the directions set out in this Form CALL-1. There be no order as to costs save the Applicant’s own costs be taxed in accordance with Legal Aid Regulations. Dated the 12th day of September 2024
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 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol )collectively, the “Refugees Convention”) [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] His date of birth is 15 August 1975, thus he will turn 49 on 15 August 2024. [6] [2023] 5 HKLRD 505 [7] [2004] 7 HKCFAR [8] [2016] 2 HKC 393 [10] HCAL 123/2010 [11] The Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme: sections 11.1 to 11.16. | |||||||||||||||||||||||||||||||||||||
Cases cited in this judgment