Iftekhar Zamader v. William Lam, Esq. (Formerly an Adjudicator of Torture Claims Appeal Board)

HCAL 34/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

NO 34 OF 2017

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D E C I S I O N

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Introduction

1.This is an application for leave to apply for judicial review.  According to Form 86 filed by the applicant, the decision proposed to be challenged is that of the Torture Claims Appeal Board (“the board”) dated 6 February 2017 (“the board’s decision”).

2.However, in an affirmation filed in support, the applicant indicates that the decisions of the Director of Immigration (dated 4 September 2015 and 27 October 2016) (“the Director’s decisions) are also challenged.

3.The Director’s decisions dismissed the applicant’s non-refoulement claim whereas the board’s decision dismissed his appeal against the Director’s decisions.

Background

4.The applicant is a Bangladeshi national born in 1973.  He used to reside in Bangladesh and worked as a tradesman.  He travelled for such purpose to China and Hong Kong from time to time from 2004 to 2006.  The applicant’s original version of having opened his own shop in Dhaka in early 2007 was later retracted.

5.He left Bangladesh for Hong Kong in May 2007. After having stayed here for about a month, the applicant once made a refugee claim but that was rejected.  In June 2008 he was arrested by the Hong Kong police for over-staying and he made a non-refoulement claim after the arrest.

6.The events which prompted the applicant to make the claims can be summarized as follows.

7.The applicant was told by his family in 2003 an uncle was missing.  He was also told the police had been alerted but no action had been taken by them.  The missing uncle was found to be dead subsequently.

8.Later, the applicant was told another acquaintance was also murdered.  The applicant claims that he and his family were framed for the murder.  He has to move from place to place to avoid being arrested by the police for murder.

9.From March to May 2007, the applicant moved to another city about 7 hours from his home and stayed there with his sister.  He was told that the murder victim’s family and the police had been looking for him in his hometown.  Because his mother was forgetful and would inadvertently disclose his whereabouts to strangers, the applicant decided to leave Bangladesh in May 2007.

The Director’s decisions

10.The Director approached the applicant’s claim based on:

(a) risk of torture (Part VIIC, Immigration Ordinance (Cap 115)) (“torture risk”);

(b) risk of torture or cruel, inhuman or degrading treatment or punishment (Art 3, s 8, Hong Kong Bill of Rights Ordinance (Cap 383)) (“BOR risk”);

(c) risk of persecution with reference to the non-refoulement principle (Art 33, 1951 Convention relating to the Status of Refugees) (“persecution risk”).

The Director also considered the likelihood of the applicant’s feared treatment being materialized.

11.The Director concluded that the level of risk of harm to the applicant is low.  The long time lapse between the murder and the applicant’s subsequent stay in Bangladesh was taken into account.  Apart from considering other matters such as the effectiveness of law enforcement in Bangladesh, the Director also found that the applicant could (and did) relocate to another place (or places) in Bangladesh where there was no indication of likely harm.

12.By reason of the above conclusion, the Director assessed the risks mentioned in para 10 above to be unsubstantiated.

The Board’s decision

13.Similar to the Director, the board also considered the risks mentioned in para 10 above.  Further, the board also considered the right conferred by Art 2, s 8, Cap 383 (“right to life claim”). Before the board’s decision was made, the applicant was afforded a hearing where he appeared in person.

14.The board concluded that the applicant’s fear of the murder victim’s family was unfounded.  There was simply no indication of any past (or imminent) assault (or threat of assault).

15.In relation to the risks mentioned in para 10 above, the board reached conclusions similar to that reached by the Director (para 11 and 12 above).

16.The board also found against the applicant as regards credibility and reliability, concluding that he was dishonest and unreliable.

17.Based on the above, the board also rejected the applicant’s right to life claim.

This application

18.The supporting affirmation lists the following as grounds for seeking leave:

(1) procedural impropriety/unfairness (failure to investigate into the country of origin information of Bangladesh);

(2) irrationality (failure to place weight on relevant information and/or selectively placing weight on irrelevant information);

(3) irrationality (failure to consider a consistent system of human right violations);

(4) irrationality (failure to consider if state protection exists in Bangladesh);

(5) irrationality (placing weight on irrelevant matters, or on inaccurate or incorrect fact(s));

(6) procedural impropriety (failing to call for psychological and/or psychiatric reports and/or evaluations);

(7) procedural impropriety (applying the incorrect standard of proof);

(8) procedural impropriety (assigned duty lawyer’s failure(s) resulted in a lack of proper legal representation).

19.Despite the plethora of complaints set out in the supporting affirmation, particulars have not been given in relation to each complaint.  The only specific matters of complaint are:

(a) delay in providing to him the hearing bundle for use before the board hearing.  This is said to have caused difficulties to the applicant to properly deal with the Director’s submissions;

(b) the board’s decision was sent to the applicant by post, and not informed by telephone as he requested;

(c) the board relied on hearsay and/or outdated materials;

(d) the board determined the right to life claim even though this has not been dealt with by the Director.

20.The complaints set out in para 18 above lack particularity and are in truth nothing more than assertions. 

21.Further, the complaint of delay in the provision of hearing bundle was not raised at the board hearing.  In any event, the board dismissed the appeal not because of legal submissions advanced by the Director, but because of the board not being satisfied of the applicant’s risk claims and the board’s assessment of the applicant’s (lack of) credibility and reliability (para 11, 14 and 16 above).  The other complaints summarized in para 19(b) to (d) above have no merit.

Conclusion

22.The application for leave is refused.

Other matters

23.The applicant’s supporting affirmation also mentions various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the decision and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

The applicant appeared in person