A.B.M. Shadiqul Islam v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL439/2017

[2018] HKCFI 172

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 439 of 2017

BETWEEN

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 male who first came to Hong Kong in 2004 using a false identity and then returned to his village in January 2005 after he was deported.  He came back again to Hong Kong in May 2005 using his real identity and stayed here for about four years before going home again in January 2010.  During that time the applicant made a torture claim, served a term of imprisonment, withdrew his torture claim and was deported back to Bangladesh.  In July 2014 he left his home village to move to Dhaka before coming back to Hong Kong in January 2014.  He was arrested by the Hong Kong police the same day that he entered Hong Kong by boat illegally.  Once again, he served a term of imprisonment for more Immigration offences and then lodged a non-refoulement protection claim.

2.The applicant’s claim was rejected by the Director of Immigration (“the Director”) on 1 September 2016 and 29 March 2017.  He lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 13 July 2017.  The applicant filed a notice of application for leave to apply for judicial review on 24 July 2017.  The applicant applied for legal aid which was refused.  He did file an affirmation to support his application but there were no grounds in it.  An oral hearing was arranged to assist the applicant in the event he could articulate those grounds in person.  The applicant appeared at a hearing on 15 November 2017.

3.The basis of the applicant’s claim was that he would be harmed or killed by a moneylender called Golam and his associates and a group of Awami League (“AL”) members if he returned to Bangladesh because he failed to repay a debt he owed to Golam.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in detail in their decisions therefore, I only intend to summarise it here.

4.The applicant was born in 1968, received 10 years of education, is married with three children and has 17 years of working experience.  He began as a farmer and then ran his own clothing business before buying an auto rickshaw and working as a rickshaw driver.  From 1995, the applicant ran a clothes store in a bazar but some customers failed to settle invoices leading to cash flow problems.  The applicant had to borrow money from a successful businessman who had political ties with whichever political party was in power called Golam.  He borrowed money from him on more than one occasion and eventually owed him a lot of money.

5.The applicant was unable to repay his loan which led to threats from the moneylender; the applicant eventually fled from Bangladesh intending to go to South Korea to avoid him.  He ended up in Hong Kong before he was deported after a period of time back to Bangladesh in January 2005.  He did not know he could ask for non-refoulement protection before he was deported.

6.Once he returned to Bangladesh, Golam began to threaten him again to repay his debts.  In March 2005 he was given an extension of one month to repay it.  He was warned to repay it all or he would be in trouble.  On 15 April 2005, he was told that the moneylender would come with guns.  On that day, when the moneylender was seen coming the applicant ran away.  The applicant arranged to leave the country in fear of his life and arrived in Hong Kong in May 2005 and approached the UNHCR to seek asylum in 2006.  He only lodged a torture claim after he was arrested when he found out about it.

7.The applicant did withdraw that torture claim when his father sold land and repaid half of the loan to the moneylender.  The applicant assumed the debt was repaid and it was safe to go home.  Upon his return in January 2010, the applicant purchased an auto rickshaw with his father’s assistance.  He joined a rickshaw driver’s union which was affiliated with the Bangladesh Nationalist Party (“BNP”).  He became a general secretary of his ward for the union.

8.His father passed away in October 2012 and then Golam who supported the AL, the governing party, demanded he repay the balance of the loan, 360,000 Taka.  He was threatened on numerous occasions.  In 2014 the applicant said the moneylender’s men drove their motorbikes at his rickshaw causing him to have an accident in which he and his customers sustained injuries.  In March 2014, some AL members demanded the applicant join their party and in return they would persuade Golam not to threaten him any longer.  The applicant refused so they informed the police that the applicant was associated with terrorist activities.

9.On 28 June 2014, during an electioneering event between the two parties a scuffle broke out and the applicant was injured and required some hospital treatment to a chest and leg injury.  After this the applicant moved to Dhaka from around July 2014 because he felt his life was in danger.  He then left Bangladesh again in January 2015.

10.The adjudicator, and 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”).

11.The adjudicator treated the oral appeal hearing as a rehearing.  He correctly set out the law and key legal principles applicable to all four grounds.  Having read the decision, it seems the adjudicator accepted the applicant’s evidence as truthful.

12.As far as the torture risk is concerned, the adjudicator clearly had the definition of torture under section 37U(1) of the Immigration Ordinance in mind and applied the applicant’s evidence to it.  She found there was no severe pain or suffering, physically or mentally, inflicted upon the applicant by his enemies within that definition.  There was no evidence there was a foreseeable, real, personal and present risk that if he returned to Bangladesh he would be subjected to severe pain or suffering.  The adjudicator was satisfied that there had been improvements from the government to combat the police inefficiency and corruption.  There was no evidence to suggest the government was unable to discharge its duty in offering State protection to its citizens.  The adjudicator found the torture risk claim failed.

13.The adjudicator found his fear of ill-treatment did not fall within the definition of persecution.  The source of his fear was due to a failure to repay the outstanding loans to a moneylender.  The persecution risk claim failed.

14.The adjudicator identified what the applicant had to prove to invoke protection under Article 3; he had to prove he had been subjected to ill-treatment, be it physical and/or mental suffering that met a minimum level of severity and that he faces a genuine and substantial risk of being subjected to the same ill-treatment if he returned home.  The adjudicator found, on his own facts, he had not been able to prove either limb.  The BOR 3 risk claim failed.  The same finding applied to Article 2; he had not proved a personal and real risk to his right to life.  The BOR 2 risk claim failed the adjudicator confirmed the decision of the Director.

15.Although in light of her findings, the adjudicator did not have to, she went on to consider whether internal relocation was a viable option.  She found after looking at certain country of origin information that the applicant could relocate internally without undue hardship.

Leave to apply for judicial review

16.I have considered with rigourous examination and anxious scrutiny the papers of this application.  Although the applicant has sought leave to judicial review both the Director as well as the adjudicator of the TCAB, this is not the right course of action to take.  The applicant has already utilised the channel of appealing the Director’s decision to the TCAB.  The TCAB treated the appeal/petition as a de novo hearing or rehearing.  There is no room for a judicial review of the Director’s decision.  I have only considered leave to judicial review the TCAB’s decision.

17.I am acutely aware the applicant was unable to articulate any grounds to support his application.  I have taken it upon myself nevertheless, to ensure that the adjudicator has adhered to a high standard of fairness, not made any errors of law and that the hearing proceeded without any procedural unfairness.  I find no faults or errors.  I also find that the substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

18.Therefore, the applicant’s claim is not reasonably arguable and it has no realistic prospect of success.  I refuse leave for judicial review.

Dated 2^nd day of February 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