Re Mr

HCAL 57/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.57 OF 2013

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JUDGMENT

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Introduction

1.The applicant was born on 29 March 1977 in Tangail District, Bangladesh.  He entered Hong Kong on 2 June 2006.  He was arrested for overstaying in August 2006. 

2.He lodged a torture claim (‘CAT’) in September 2006[1].  He feared that he would be killed by members of the Awami League (‘AL’), the Bangladesh Nationalist Party (‘BNP’) and the Rapid Action Battalion (‘RAB’). AL and BNP had framed allegations against him.[2]

3.His claim was rejected by the Director of Immigration (‘the Director’) on 16 November 2012.  The Adjudicator of the Torture Claims Appeal Board dismissed his appeal on 22 February 2013 (‘the Adjudicator’). 

4.He applied for leave to judicial review both decisions on 5 March 2013.  The application was adjourned pending the implementation of a new screening procedure[3]. The new United Screening Mechanism (‘USM’) commenced on 3 March 2014.  The Applicant’s legal aid was extended for this leave application. 

5.In response to the enquiry from this court in February 2014, the solicitor for the Applicant[4] indicated that the Applicant would rely on CAT claim only[5].  However, counsel was just assigned and the case was not ready for hearing. 

6.On 10 October 2014, this court granted leave for the Applicant to amend the original Form 86 which was filed on 22 October 2014. 

7.A hearing was held on 30 April 2015.  It only concerned the CAT claim under Part VIIC of the Immigration Ordinance. 

Background

8.The applicant was married.  He lived in the Tangail District of Bangladesh all along.  He ran a leather business from 2000 to 2004. His family lived in Bangladesh[6]. His father had passed away.   

9.In 1991, he was a member of the student faction of the Jatio Party (‘JP’) in G.B.G College.  He was popular among students.  He was a member of the student committee.   

10.In 2000, he became the secretary of the youth faction[7] of JP.  The party advocated peace and order, progress in education and development.  He was responsible for propaganda, canvass and recruitment.  He could mobilise about 400 members in meetings and demonstrations for these purposes.  He managed to persuade some AL and BNP members to join JP. 

11.In 2004, the leaders of AL and BNP offered attractive rewards for him to join them[8]. He turned them down politely.  He felt those party members were angry at him.  During the election in 2004, he refused to support candidates from AL and BNP.  He continued to criticise the government for corruption and abuse of power.   

12.About the end of 2004, some cadres of AL accused him of owing them a debt of 200,000—300,000 Bangladesh Takas.  They would kill him if he did not repay.  On or about 7 December 2004, when he was on his way to report this case to the police, he was stopped by about 8 AL members asking him to repay the debt.  They slapped and punched him for 5 minutes. They threatened to kill him before leaving.  He recognised some of them who were students and followers of AL leaders.  He sustained some injuries on his body and face but did not seek treatment.  He went to his cousin who advised him to make a report. (Incident (1))

13.In the same evening, while on the way to the police station, he was stopped by about 7 BNP members.  He was taken to the party office.  They accused him of owing them a debt of about 5 million Bangladesh Takas.  They assaulted him causing injuries to his eyebrows, lips and teeth.  They forced him to sign some blank papers.  He signed a false name—‘Mintu’[9].  They threatened to kill him if he reported to the police. (Incident (2))

14.Eventually, he was released.  A friend helped him to have some treatment.  He did not make a report but went to Dinajpur District.  He stayed at the house of his wife’s relative. 

15.Subsequently, those BNP members filed a fraud case against him.  They used his real name in the case.  He thought somehow they learned of his real name from some classmates or friends who associated with BNP. 

16.His brother went to Ghatail police station to make a report on his behalf.  There were senior BNP leaders in the police station.  They threatened to kill his brother if he made a report. 

17.He did not seek assistance from the Member of Parliament in his district as this person had absconded. 

18.While he stayed in Dinajpur in 2005, his brother-in-law informed him that apart from the fraud case, AL and BNP filed a case of illegal arms against him.  They complained to the Home Ministry and police headquarters to hasten his arrest.  A Minister[10] also reported the case to RAB.  The RAB had come to his house to look for him.  The RAB was infamous for extra-judicial killings in Bangladesh. 

19.He was afraid of AL and BNP.  He left Bangladesh for India, Nepal, China and finally Hong Kong.  He did not know he could apply for CAT claim or refugee claim while in Hong Kong.  He returned to Bangladesh in December 2005 as he had used up his money and had a visa problem.  He stayed in Dinajpur. 

20.Later, he left Dinajpur and went to Birgonj.  The locals there were suspicious about his presence.  He left Birgonj for Daka, then to Hong Kong on 2 June 2006.

21.Since then, the RAB assaulted his elder brother to extort information about his whereabouts.  They also threatened to arrest his father and brother.  In September 2007, he learned that he was wanted and his photograph was in a newspaper.  The same group of people from AL and BNP who had assaulted him set fire to the house of his niece.   

22.He pointed out that the police in Bangladesh was corrupt and under the influence of political party leaders.  Many members of JP were killed, imprisoned or fled the country.  JP was virtually non-existent.

Immigration History

23.The applicant came to Hong Kong on 2 June 2006.  He was allowed to stay until 16 June 2006.  He was arrested for overstaying on 4 August 2006.  A removal order was issued on 24 August 2006.  The appeal against the removal order was dismissed by the Immigration Tribunal on 7 September 2006.  He lodged the CAT claim on 9 September 2006.  He was released on recognizance on 19 November 2006. 

The decisions of the Director and the Adjudicator

24.The Director rejected his claim on the following grounds:

(i) The attacks and threats to the applicant did not amount to torture under article 1 of the Convention[11]. The reasons being:

a There was no evidence of official involvement.  Acts of AL and BNP members should not be linked with official involvement. 

b There was no evidence that the police or government authorities had abused their power in the investigation of the allegations against him. 

c The applicant could leave Bangladesh in 2006 on the strength of his passport in spite of the allegations against him.  In fact, he was under a warrant of arrest.[12]  

(ii) The overall credibility of his claim was not accepted:

a Being the secretary of the youth faction of JP, the applicant wrongly stated the principal objectives advocated by the party. 

b In the questionnaire dated 9 August 2012, he failed to mention that AL members had threatened to kill him when people came to rescue him during Incident (1).  However, he mentioned clearly the death threat in Incident (2) by BNP members in the same questionnaire.  The two threats were important bases of his fear.  They occurred one after the other in time on the same day.  It was unconvincing that he was not certain during the interview[13] whether he mentioned the first threat by AL members in the questionnaire.[14] 

c In the questionnaire, he did not mention that there were BNP leaders in the police station when his elder brother made a report there.[15]  

d During the interview, he explained that he came to Hong Kong in 2005 and 2006 as he was afraid of AL, BNP and RAB.  However, he returned to Bangladesh in 2005[16] as he had financial and visa problems in Hong Kong.  However, he might have stayed if he knew he could apply CAT claim.[17]

(iii) There is no real risk of torture upon return. 

a The applicant was never arrested, detained or imprisoned in Bangladesh.  There was no evidence of official involvement.  There was no evidence that RAB had targeted him either.

b The applicant had never approached the Bangladesh police to clarify the allegations against him. 

c The Country of Origin Information Report 2012 (COI)[18] recognised improvement in police professionalism in Bangladesh.  There was reasonable protection and fair investigation. 

d There was constitutional guarantee of equal protection under the law in Bangladesh.  Similar findings were recorded in The Human Right Report by US State Department. 

e The applicant was only a secretary of the youth faction of JP.  His role was mainly at the district level.  It was unconvincing why AL and BNP members targeted him.

f The COI revealed that JP had allied with AL to form the ruling party in Bangladesh.  This was contrary to the applicant’s claim that JP was virtually non-existent. 

g He had safely stayed at Dinajpur and Birgonj for 6 months before leaving Bangladesh. There was no trouble from AL or BNP during this period. 

25.The Adjudicator dismissed his appeal on the following grounds:

a The claim was doubtful as the applicant was only a low ranking member—the secretary of the youth faction of JP—at district level.  It was unlikely that AL or BNP would frame him up. 

b The applicant failed to recall the principal objectives of JP despite he was the secretary of the youth faction.  He did not even know that JP had joined the Grand alliance led by AL which won the election in 2008. 

c There was no evidence that the allegations against the applicant involved public officials or the Bangladesh government.  There was no evidence that AL, BNP and RAB were acting in concert with any public officials. 

d The injury inflicted on the applicant did not amount to severe pain and suffering. 

e The applicant had never been arrested, detained or imprisoned in Bangladesh.  He could leave Bangladesh freely in 2005 and 2006. 

f His allegation against the integrity of the Bangladesh police was contrary to the observation in the COI.[19]  

g He could have stayed in other districts in Bangladesh.  In fact, he had stayed in Dinajpur and Birgonj for six months without being located. 

Judicial Review

26.In support of the leave application, counsel for the applicant, Ms Queenie Lau, raised four grounds as follows:  

(A) The Adjudicator failed to hold an oral hearing

27.Ms Lau relied on the principles set down in ST v Betty Kwan and Another[20]. She pointed out that the ultimate question was one of fairness.  Even if there was no dispute of fact, an oral hearing should be held whenever fairness required in the light of the facts and the importance of what was at stake.  The latter should be of particular importance in CAT claims.   

28.Ms Lau argued that there might be matters or legal issues which obviously required oral clarification.  An Adjudicator who re-heard the petition must make an independent decision supplemented by an oral hearing if need be.  Ms Lau pointed out that the Adjudicator had not explained why a hearing was not necessary in this case. 

29.Ms Lau pointed out that there was credibility issues in the present case.  There could be dispute as to the integrity of the Bangladesh police and the influence by political leaders.  There was information in the COI which supported the applicant’s case[21]. All these indicated that an oral hearing should be held. 

30.As held in ST v Betty Kwan, there is no absolute right to an oral hearing.  It depends on factors including:

(i) the standard of fairness required,

(ii) the nature of the decision making process,

(iii) the procedural history of the matter. Whether there had been an oral hearing before,

(iv) the interest at stake,

(v) the issues involved, and

(vi) the possible effect of the oral hearing.[22]

31.Mr Justice Cheung, Chief Judge of the High Court (CJHC), stressed that as life and limb were usually at stake in torture claim cases, a high standard of fairness must be observed.  Given the inherent limitation of written submissions, high standard of fairness would require the holding of an oral hearing even when there was no factual dispute.  An Adjudicator should point out to an applicant matters which required clarification. 

32.CJHC accepted that there might not be a duty of inquiry provided that an applicant was aware of his/her burden to prove the issues.  His Lordship stressed that it was important to let the applicant participate in such decision which might be of serious implication to him/her. In fact, in Australia, New Zealand and England, oral hearing was the norm. 

33.In ST v Betty Kwan[23], CJHC ruled that there should have been an oral hearing.  The main reasons were:

(i) The Adjudicator relied heavily on two important decisions from the UK Asylum and Immigration Tribunal (“AIT”) as follows:

a The case of LP which considered the situation during the civil war in Sri Lanka when there was serious security problems.  The AIT set out factors for assessing the risk of torture when failed refugee and torture claimants of ethnic Tamil were repatriated to Sri Lanka.[24]

b The case of TK was decided after the civil war ended.  The AIT reviewed the guidance given in LP.  The AIT also considered the significance of the new computerised system for checking the background of ethnic Tamils when they were repatriated to Sri Lanka at the Colombo airport.  The question for the AIT was whether there was real risk of adverse treatment of ethnic Tamils since LP.[25] 

(ii) These decisions set out a principled approach, based on expert evidence, towards assessing the relevant personal risk to the torture claimant if returned to Sri Lanka. 

(iii) These two cases are “country guidance” cases, for deciding similar cases involving asylum seekers and torture claimants from Sri Lanka. 

(iv) The Adjudicator should have drawn the applicant’s attention to these cases given the high standard of fairness required.  This was especially so when the applicant had not adopted the AIT approach in his petition.

34.In my view, the question is whether fairness requires the holding of an oral hearing in the light of the facts and the interest at stake.  This is particularly so when there is some dispute of the facts in an important aspect or that the Adjudicator could not independently assess the risk asserted.  The factors to be considered vary with individual cases.  The absence of factual dispute, however, may not by itself be a sufficient reason for not holding a hearing.  An Adjudicator should not refuse an oral hearing to save time and expense.[26]  

35.Ms Lau pointed out that the Adjudicator had considered the credibility of the applicant.  She relied on paragraphs 10 and 11 of the Adjudicator’s decision.  Ms Lau opined that this called for an oral hearing. 

36.The Adjudicator did use the title—‘Whether his claim was credible?’—in his decision.  However, he actually accepted the applicant’s version of facts and assessed whether his claim was credible.  He did not make any further assessment of credibility beyond these facts.  The following points were important in his analysis:

a The Adjudicator doubted why the AL and BNP leaders would make attractive offer to the applicant for joining their parties despite he was only the secretary of the youth faction of JP. 

b The Adjudicator doubted the frame up against the applicant by both parties given that the applicant was only a low tier member. 

c The Adjudicator found it unacceptable that the applicant, being the secretary of the youth faction, had wrongly recalled the principal objectives advocated by JP. 

d The Adjudicator queried that the applicant claimed JP was non-existent, instead JP joined the grand alliance led by AL and won the election in 2008. 

e In the Interview Report (grounds for non-removal) on 5 August 2006 [27], the applicant told the Director that he did not wish to return to Bangladesh as he was converted from Islam to Christianity.  He was afraid of revenge from extremist Islamic group “G.M.B”.  The Adjudicator pointed out that this was inconsistent with what the applicant said during the interview in relation to the CAT claim.  The applicant said he came to Hong Kong as he was afraid of AL, BNP and RAB[28]. 

37.Ms Lau also pointed out that there could be dispute as to whether the applicant was targeted by the Bangladesh government and whether the police was corrupt and influenced by political parties. 

38.All along, the applicant did not give evidence that the acts of the AL and BNP involved any government officials.  Further, the applicant was able to leave and return to Bangladesh without trouble during the latter part of 2005 and also in June 2006.  He was never detained or arrested in Bangladesh. 

39.It is well settled that general statements alone, that the police were corrupt or the conditions of the country were unsafe, was insufficient to establish personal risk of torture.  It was only of background value. 

40.In his questionnaire dated 9 August 2012 and the subsequent interview on 30 October 2012, the applicant maintained similar factual background to support his CAT claim.  During the interview, the Director had asked detailed questions on important aspects of his claim.  The applicant had ample chance to explain.  In the amended Form 86, there was no suggestion of any fresh evidence forthcoming. 

41.What Ms Lau suggested, in paragraph 22 of her skeleton, were possibilities of dispute.  Bearing in mind the principles in ST v Betty Kwan, I could not see how the factual background of this case could have raised any concern, in the mind of the Adjudicator, that further clarification or holding of an oral hearing was warranted. 

(B) The Adjudicator failed to make adequate enquiry of the country conditions of Bangladesh

42.Ms Lau criticised the Adjudicator and the Director for failing to enquire about the corruption of the police force in Bangladesh and the influence by political leaders.  She cited Secretary for Security v Prabakar and TK v Jenkins and other in support. 

43.In Prabakar, Li CJ pointed out that it would not be appropriate for the Secretary for Security to sit back and put the claimant to strict proof.  The Secretary should draw the claimant’s attention to issues which obviously required clarification or elaboration.  As to country conditions, Li CJ recommended information published by the UNHCR and well-respected non-governmental organizations.[29]  His Lordship further commented on what high standards of fairness required,

“In considering the potential deportee’s torture claim, the necessary high standards of fairness should be approached as follows: (1) The potential deportee, who has the burden of establishing that he would be in danger of being subjected to torture if deported to the country concerned, should be given every reasonable opportunity to establish his claim. (2) The claim must be properly assessed by the Secretary. (3) Where the claim is rejected, reasons should be given by the Secretary. The reasons need not be elaborate but must be sufficient to enable the potential deportee to consider the possibilities of administrative review and judicial review.”[30]

44.In the later case of TK v Jenkins & Another, CJHC commented on the duty to inquire,

“In my view, the bottom line of the high standards of fairness required of the screening process is fairness. And fairness, in the present case, did not require the Adjudicator or the Director to find out any such information for the represented applicant, at least in the absence of any request for assistance and an explanation of the difficulties (if any) encountered or anticipated.”[31]

45.In TK, the claimant alleged that he had no local protection from the police.  CJHC pointed out that the applicant was all along represented and could have obtained for themselves information to support their claim.  If the applicant and his legal representatives had not seen fit to obtain and supply such information to the Adjudicator, the high standards of fairness would not require the Adjudicator to do so for the applicant.  After all, there was no such request.[32]

46.Ms Lau cited paragraph 8.02 of the COI which pointed out the problems of the police in Bangladesh generally [33].  She argued that the Adjudicator’s attention was not drawn to this fact. 

47.Following paragraph 8.02, the COI set out the recent reforms of the police force in paragraph 8.05—8.08 showing gradual improvement in the police force in Bangladesh.  The Director mentioned these reforms in paragraph C(iii) of his decision.  The Adjudicator referred to the same in paragraph 18 of his decision.  The criticism of Ms Lau is not valid. 

48.Ms Lau also cited paragraph 2.3.4 which was from the executive summary of the COI.[34]  This paragraph actually repeated the content of paragraph 8.02 in the main body of the COI.  I do not think the Director or the Adjudicator need to repeat the discussion again.

49.Ms Lau pointed out that the work of the police force in Bangladesh was far from satisfactory.  She relied on paragraph 2.3.9 of the executive summary of the COI.  This was a summary of paragraphs 8.12—8.25 in the main body of the COI. 

50.The situation in Bangladesh might not be satisfactory.  However, it is well settled that the existence of a pattern of violations of human rights in a country does not constitute a sufficient ground for determining that a person would be at risk of torture upon his return to that country.  There must be additional grounds indicating that the individual concerned would be personally at risk.[35]  

51.In addition, one must not lose sight of the fact that the applicant was never arrested or imprisoned in Bangladesh.  He had not encountered any problem with the authorities in Bangladesh.  He could leave and return to Bangladesh in 2005 and 2006. 

52.The Director had also considered the Constitution of Bangladesh which recognised equal protection under the law.  The judicial system recognised the right for legal representation, calling of witnesses and public hearings. 

53.The Adjudicator mentioned similar findings in paragraph 17 and 18 of his decision. 

54.In fact, the applicant had not demonstrated satisfactorily that he would be personally at risk.  He had made no request for assistance to the Director for further enquiry.  He did not indicate any difficulty either.  Ms Lau had not suggested any inquiries which should have been made.  I do not accept this ground. 

(C) State acquiescence

55.Ms Lau submitted that the Director of Immigration erred in law as to the correct test of state acquiescence.  Ms Lau relied on the principle set down in AM v Director of Immigration and Another. 

56.In AM v Director of Immigration & Another,[36] McWalters J (as McWalters JA then was) cited the opinion of the Committee against Torture[37] in relation to the scope of state acquiescence.  His Lordship pointed out that there could be active and passive state acquiescence.  The former occurred when the state failed to exercise due diligence to prevent, prosecute and punish a non-state official or private actors.  The latter occurred when the state’s indifference or inaction provided a form of encouragement and/or de facto permission to the conduct of a non-state official or private actor.  In both scenarios, the state must know or have reasonable grounds to believe that acts of torture or ill-treatment are being committed by a non-state official or private actor. 

57.Ms Lau submitted that the applicant’s elder brother had gone to Ghatail Police Station to report the two incidents of assault on the applicant.  However, he was threatened by BNP members in the Police Station.  It was reasonably arguable that this amounted to passive state acquiescence. 

58.The Director dealt with this point in section B(iii) of the decision.  In the questionnaire, the applicant had not mentioned that BNP members threatened his elder brother when the latter tried to make a report in the Police Station[38]. However, during the interview, the applicant mentioned the threat[39].  The Director asked about this discrepancy during the interview.  The applicant explained that he thought he had written it down in the questionnaire.  In fact, the applicant did not mention this incident in his detailed account of the factual basis of the claim in Q/A 33 of the questionnaire.  The Director rejected this explanation as this was important evidence to show that the police was influenced by BNP members.  In my view, the Director was right to reject this explanation. 

59.Having rejected the evidence above, there was no evidence that the applicant’s brother was so threatened.  There was no evidence that the applicant had personally reported the two incidents of assault to the police in his district.  There was also no evidence to indicate that the police had reasonable grounds to believe that the two incidents of assault had occurred.   In the circumstances, the Director was right to conclude there was no state involvement or acquiescence. 

60.Ms Lau criticised the Adjudicator for focusing only on any involvement of public officials.  Had the Adjudicator made adequate enquiry of the country condition in Bangladesh, he would not have concluded that the Bangladesh government, the police and RAB had not acted beyond their duties in the investigation of the allegation against the applicant. 

61.The Adjudicator made these findings:

a Although BNP was the ruling party, it did not mean anything done by its members or supporters was the act of the government or public officials. 

b The applicant was never arrested, detained or imprisoned in Bangladesh.  This indicated that there was no official involvement in the attack, threat or extortion of money. 

c The applicant left Bangladesh without any problem, this indicated that he was not targeted by the Bangladesh government. 

d The applicant had not approached any authorities in Bangladesh for assistance in relation to the problems with AL and BNP. 

e The applicant had not approached the police to clarify the illegal arms complaint against him. 

62.All the above findings supported the conclusion that there was no acquiescence, active or passive.  The country condition of Bangladesh could not take the applicant’s case any further.  The applicant must prove personal risk of torture.  I reject this ground.   

(D) Failure to consider documentary evidence

63.Ms Lau pointed out that the Adjudicator failed to consider various supporting documents, in particular, (a) a letter dated 2 January 2008 by the president of the Upazila branch of JP [40], and (b) a notice in Daily Janata stating that the applicant was a wanted person.[41] 

64.The Adjudicator had not specifically referred to the above two documents.  However, in paragraph 7(iii) of his decision, he indicated that he had considered other supporting documents submitted by the applicant to the Director.  The two documents must be among them. 

65.In relation to the letter by the president of the Upazila branch of JP, the Director had considered it in section E(iv) of his decision. The Director concluded that it was the personal opinion of the president.  In any event, the letter could not support any official involvement. 

66.In my view, the content of the letter was full of assertions which were not supported by any detail.  The president even said this in support of his opinion that “so for it is heard, (the applicant) has been enlisted for political oppression.”  I agree with the findings of the Director.  The Adjudicator must have considered the Director’s decision in assessing the appeal.  He too concluded that there was no official involvement in this case. 

67.In relation to the newspaper notice, the Director concluded, in section E(ii) of his decision, that the notice only confirmed that the applicant was a wanted person.  It could not be used to support that the police in Bangladesh had abused their power. 

68.In my view, the newspaper notice must be looked at together with other annexes to the questionnaire dated 9 August 2012[42].  These documents as a whole showed that the police was investigating a complaint of illegal firearm against the applicant.  They found a pistol during the search of the applicant’s home.  The case was dealt with by a special tribunal judge, MD Shah Newaz, in the district of Tangail. On the face of these documents, there were criminal proceedings initiated against the applicant who had absconded.  The warrant of arrest was appropriate.

69.The Director had considered each document submitted by the applicant in detail in section E of his decision.  I am sure that the Adjudicator had considered them before arriving at this decision in the appeal.  In the circumstances, I do not see any substance in this ground.

Conclusion

70.Having considered the above, the applicant’s case is not reasonably arguable with realistic prospect of success.  I refuse leave for judicial review.

Ms Queenie Lau, instructed by Daly & Associates, for the applicant