Hossain Mohammad Rahat v. Wong Chun-kong, Esq.

HCAL368/2017

[2018] HKCFI 49

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 368 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is a Bangladeshi national who claimed to enter Hong Kong illegally by boat on 29 December 2013 only to be arrested by the police as he landed.  He lodged an application for non-refoulement protection which was rejected by the Director of Immigration (“the Director”) on 17 March 2016 and 6 April 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 23 June 2017.  The applicant filed a notice of application for leave to apply for judicial review on 6 July 2017 requesting an oral hearing which was set down on 25 October 2017.  The applicant did apply for legal aid but it was refused so he appeared in person.

2.The basis of the applicant’s claim taken from his non-refoulement claim form (“NCF”) dated 29 October 2015 was that if he were to return to Bangladesh he would be harmed or even killed by people from the Awami League (“AL”) because he was a member of the Bangladesh Nationalist Party (“BNP”) cum local leader of the Jubo Dal (“JD”).  However, the applicant had submitted a written representation when he lodged an application for protection against cruel, inhuman or degrading treatment or punishment (“CIDTP”) dated 1 January 2014 where the basis of his claim was that if he were to return to Bangladesh he would be harmed or even killed by the police and other security forces who had started to torture and kill BNP members since May 2013.  In that representation there was no mention of the AL.

3.The Director and the adjudicator of the TCAB set out in detail the applicant’s evidence and claim in their decisions therefore I only intend to summarise it here.  The applicant was born in 1992, had 12 years of education and is single.  He has always supported the BNP and in 2010, when he was 18, he became an active member of the JD, a youth wing of the BNP.  In November 2011 he was elected as a vice president of Ward 13 of the JD executive committee.  The first incident occurred on 1 September 2012 after a BNP rally in Dhaka.  The applicant was beaten up by 10 to 12 men on his way home; he surmised that some attackers were subordinates of the president of the Jubo League (“JL”), the youth wing of AL.  He was not seriously injured, receive some medical treatment from a doctor but did not report the attack to the police as he did not believe the police would help him as they were controlled by the AL.

4.Whilst he was recovering from this attack, members of the Chhatra League (“CL”), a student wing of AL visited the applicant’s home. The applicant’s mother managed to fend them off by lying to them; telling them the applicant was not at home.  They made many threats; threatening the applicant’s life.  Because of this visit and the threats made, the applicant went to hide at his aunt’s home in New Market, Dhaka.  However, within a week, the CL people tracked him down there.  The applicant managed to avoid them and left his aunt’s home for Barisal where he hid in his cousin’s home.  However, about a month later, local CL leaders asked his cousins to search their home for the applicant.  The applicant only managed to flee in time for Banani, Dhaka. There he hid in his maternal uncle’s house.  He was told by BNP leaders to keep a low profile because many party leaders were disappearing.

5.The second incident took place on 5 May 2013 when the applicant joined a rally of about 100,000 people from BNP and other supporting parties to demonstrate for a caretaker government before the next elections.  By the evening, the rally was dispersed by the police and security forces using firearms and batons.  The applicant fled uninjured but learnt later that other supporters had died or were injured.  He discovered that BNP leaders had disappeared, been arrested, killed or had fled the country.  The applicant then decided to leave Bangladesh because his own life was in danger.

6.He paid HK$30,000 and it was arranged for the applicant to fly from Bangladesh to Kunming, China on 22 November 2013.  He left the airport without any problem.  He was then flown to Guangzhou on the same day and taken to a hotel.  He was told to wait until someone picked him up.  He was taken to the Immigration border control at Lo Wu on 4 December 2013 but forgot what the agent had told him to tell Hong Kong Immigration officers and was therefore refused entry.  On 29 December 2013 he was illegally sneaked into Hong Kong by boat.  He was arrested upon landing by the police.

7.His family have told him that AL people and police visit the family home from time to time and there is a warrant of arrest issued against him for a false case.  The applicant believes internal relocation is impossible because the police are controlled by the AL and will locate him anywhere in Bangladesh.

8.The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)   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, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

9.The adjudicator of the TCAB treated the appeal/petition as a rehearing.  The adjudicator correctly set out the law and key legal principles relevant to the four applicable grounds. In particular, he considered that when assessing credibility, the existence of inconsistencies in the applicant’s account may not be fatal so long as the centrepiece of the story stands.  He bore in mind that the applicant could honestly forget facts, make mistakes or even embellish his case to make it seem stronger.

10.The adjudicator considered and compared the applicant’s oral evidence during the appeal hearing with the evidence in his written representation dated 1 January 2014 given very soon after his arrest and not long after he left Bangladesh with his NCF composed some 22 months later as well as his interview with an Immigration officer accompanied by his duty lawyer on 14 January 2016.

11.Ultimately, the adjudicator reached the conclusion that the applicant’s claim and his supporting documents which were all copies and not originals, were unbelievable, implausible and unreliable.  All the while, the adjudicator bore in mind the serious consequences to the applicant if he made the wrong decision as to credibility.  He did not make the decision likely.  However, the number and nature of the inconsistencies and implausibilities were sufficiently serious to completely undermine the applicant’s claim; they went to the core of his claim and affected the material elements.  The adjudicator did not find him a genuine claimant.

12.The adjudicator set out in his decision examples why he could not find the applicant credible.  He did not even believe the applicant was affiliated with BNP/JD. The adjudicator gives full reasons why he rejects the applicant’s claim he has any party affiliation. In addition, it was most telling that it took the applicant 22 months after his initial claim to even mention the AL and his fear of them.  In his initial claim he made no allegations against the AL or CL or JL.  Yet in his NCF 22 months later the basis of his claim and his fear centre around these parties.

13.The adjudicator also addressed the documents supplied by the applicant and questioned the authenticity of the majority of the copies produced.  He was not satisfied with the authenticity and reliability of the majority despite the explanations of the applicant.

14.As a result of the adjudicator’s finding, he went on to conclude the applicant had failed to establish he would face a real risk of persecution, a real risk of torture or CIDTP under Article 3 of HKBORO, a real risk of being deprived of his right to life under Article 2 of HKBORO and a real risk of torture as defined in section 37U(1) of the Immigration Ordinance if he is refouled to Bangladesh.  The adjudicator did say that even if his claim had any truth to it he would still be unable to successfully establish a claim under any of applicable grounds.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

15.I have considered, with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions.  I find the adjudicator’s decision to be without fault.  He analysed the material, claim and evidence carefully.  The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

16.There are eight grounds in this affirmation and most contain no particulars.  Those include grounds 5, 6, 7 and 8.  As an example, for ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion.  There was no complaint made to the adjudicator concerning the performance of the lawyer assigned.  For ground 6, it was never part of the applicant’s case there was a need for psychological or psychiatric evaluation.  These grounds have no merits.

17.In grounds 1, 2, and 4, it is submitted the adjudicator failed to consider relevant and up-to-date COI research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning.  There are no particulars provided but in any event, the adjudicator did not need to consider COI material as he rejected the applicant’s claim on credibility.  Similarly, in ground 4, the adjudicator need not consider whether the State had exercised due diligence when the reality was the adjudicator had dismissed the appeal/petition because he did not accept the applicant’s evidence as credible. These grounds are not reasonably arguable.

18.The applicant complains he was not given sufficient time to prepare for his appeal, the appeal bundle was in English, he was confused during the appeal and felt the hearing was unfair to him.  I was satisfied the applicant had the assistance of an interpreter and had the procedure of the hearing explained to him.  He made an election to give evidence.  There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal.

19.There is a complaint the Director did not screen the BOR 2 risk before it was dealt with by the TCAB but clearly this allegation is incorrect when the Director’s decision rejecting the BOR 2 risk is dated 6 April 2017 and the appeal hearing dealing with the appeal of that BOR 2 risk claim was 24 & 29 May 2017; after the Director’s decision.

20.I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

21.In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.

Dated 26^th day of January 2018.

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