Mohammed Tara v. Torture Claim Appeal Board

HCAL 72/2017

[2018] HKCFI 235

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 72 OF 2017

BETWEEN

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

Order by the Honorable Madam Justice D’Almada Remedios

Leave to apply for Judicial Review refused

Observations for the applicant:

Introduction

1.The Applicant is a Bangladeshi national. He claimed to have sneaked illegally into Hong Kong on 19 October 2013.  He was arrested on 20 October 2013 and filed a non-refoulement claim on 23 October 2013.  He was released on recognizance on 1 December 2013.  A Removal Order was issued on 30 December 2013 and served on him on 15 January 2014.

2.The Director of Immigration (“the DOI”) by a Notice of Decision dated 19 January 2016 and a Notice of Further Decision dated 1 February 2017 rejected the Applicant’s non-refoulment claim (“the Director’s Decision”).  The Adjudicator[1] of the Torture Claims Appeal Board (“the TCAB”) confirmed the decision of the DOI and dismissed the Applicant’s appeal on 23 February 2017 (“the Adjudicator’s decision”). 

3.The Applicant now seeks leave to apply for judicial review seeking relief to quash the Director’s Decision and the Adjudicator’s decision.

4.Legal Aid has been refused by the Director of Legal Aid.  The Applicant is not legally represented.  He submitted a Form 86 with supporting Affirmation dated 10 March 2017.

5.It is the Applicant’s claim that if he is refouled to Bangladesh, he will be at risk of being harmed or killed by men of the Awami League Party (“ALP”). 

The Applicant’s case

6.The Applicant, a Bangladeshi national, is 42 years old, married with a son.  His son is about 14 years old.  He has one brother who lives in Bangladesh and both his parents have passed away. 

7.The Applicant is educated to Primary 4 and he is of the Islam faith.  From 1992-2005, the Applicant assisted his father in a printing press business in Fakirapool in Dharka.

8.From 2006 to April 2009, the Applicant worked in Malaysia as an assistant at a golf club.  In May 2009, he returned to Bangladesh and took over his father’s printing press business. 

9.The Applicant and his family are supporters of the Jamat-e-Islamic Party (“Jamat”).  The Applicant has been a supporter of Jamat since 2010.  He attended 8 to 10 public meetings from 2010 to 2013 to show his support for the party.  He also helped to distribute posters, leaflets and booklets.  Further, he had business from Jamat to print posters, leaflets and booklets and he gave them a discreet 20% discount on such items for printing. 

10.In 2012, a group of 4 ALP members assaulted the Applicant, by slapping him, for printing and distributing the items.  They also threatened to kill him and told him to shut his business down.  Although the Applicant was unhurt, he was humiliated as there were other people watching the incident.

11.The Applicant subsequently made a report to the police but they refused to register his report.  The police told him that he was only threatened but if he was killed, it was then they would look into the matter.

12.Even though the Applicant knew it was possible to lodge a complaint to the district office or take his complaint before a magistrate, he chose not to as he was worried it may cause more trouble and feared revenge from them. 

13.Following on from this incident, ALP would come about once or twice a month to the printing press to see if the Applicant was printing any items for Jamat.  They were threatening.  It got to a point where the ALP members were visiting every day.  Even though there was no violence, the Applicant was scared.  The ALP members would open desk drawers and slam them shut.

14.On one occasion, the Applicant told them not to open the cash drawer, the ALP members poured hot tea on him.  He was not injured and the ALP did not take anything or damage property. 

15.Even though his printing business was doing well, the Applicant was under stress as a result of the harassment and threats.  Consequently, the Applicant decided to leave Bangladesh.  He did not consider relocation to another part of the country as the ALP was in power and he believed that the ALP’s power was far and wide. 

16.The Applicant obtained a passport without issue and left Bangladesh trouble free.  He left on the 14 February 2013 and went to India for 5 days.  He then went to China where he stayed in a hotel for 8 months.  He then entered Hong Kong illegally on the 19 October 2013.

Immigration History

17.The Applicant was arrested in Hong Kong on 20 October 2013 for staying illegally.  He claimed to have sneaked into Hong Kong by boat on 19 October 2013.  On 23 October 2013, he filed for non-refoulement claim protection and was released on recognizance on 1 December 2013.  A Removal Order was issued on 30 December 2013 and served on the Applicant on 15 January 2014.

Leave to apply for judicial review against the Director’s Decision

18.The Applicant has taken the option available to him of the alternative remedy of appealing to the TCAB.  As a result, judicial review of the decision of the Director is not an option open to him. 

19.However, for the sake of completeness, I mention that I cannot find that the Director has erred in his application of the legal principles.  He provided a thorough and detailed analysis of the evidence.  The Director did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  There was no error of law, no procedural impropriety or a failure to adhere to a high standard of fairness.  None of the grounds are reasonably arguable nor do they have any realistic prospects of success. 

Adjudicator’s Decision

20.The Adjudicator conducted an oral hearing on 9 February 2017.  The Applicant was not legally represented.  The Applicant chose not to give any further evidence and adopted the evidence in his appeal bundle in support of his claim.

21.The Adjudicator rejected the evidence of the Applicant and found he did not establish any of the applicable grounds under the Unified Screening Mechanism (“the USM”). 

22.The Adjudicator considered all applicable grounds under the USM.  These included the Torture risk, the BOR 3 risk, the Persecution risk, and the BOR 2 risk.[2] He addressed himself on the law of each applicable ground accordingly[3].

23.Under the Torture risk, the Adjudicator concluded that the Applicant did not show substantial grounds for believing that if he returned to Bangladesh, he would be in danger of being subjected to torture as defined in the Ordinance.  There was no evidence to show such a likelihood.  In all of the incidents described by the Applicant, those involved were acting in their personal and private capacity with no involvement at any stage of any public official or anyone acting in an official capacity. 

24.Additionally, there was no evidence that those individuals had ever looked for him after he left Bangladesh in February 2013.  As the Applicant was no longer in the printing business, it is likely that he would be of no more interest to the AL supporters especially those in Fakirapool.  Further, the Applicant’s perceived risk would be further negated as a result of the reasonableness of internal relocation. 

25.Under the BOR 3 risk, the Applicant also failed to establish that he suffered ill treatment that attained a minimum level of severity, and that he faces a genuine and substantial risk of being subjected to cruel, inhuman or degrading treatment or punishment if he is returned to Bangladesh. 

26.The Applicant failed to show that there were any merits in the Persecution risk.  He failed to show that he had a well-founded fear of being persecuted for a Convention reason. 

27.Under the BOR 2 risk, the Applicants case fell short of giving rise to any risk of right to life under Article 2(2) to Article 2(6).

28.The Adjudicator addressed himself on the Country of Origin Information (“the COI”).[4] He found that the COI and news reports showed no indication that the Bangladeshi authorities would act in favour of the ruling party, AL or any other party.  He found that the Government was seriously committed to the improvement of the professionalism of the police in recent years. 

29.Further, there were venues open to citizens to make effective complaints against the police who had acted unfairly or who failed to act accordingly.  The Adjudicator was satisfied that the Bangladesh authorities were not incapable nor were they unwilling to enforce the law and protect citizens. 

30.The Applicant had failed to report to the police over the incidents.  Although the Applicant knew of alternative venues to seek redress and could insist on taking these options, he chose not to.  The Adjudicator found that if the Applicant had insisted on the alternative course of action, from the COI, there was no reason to believe that he could not expect the police to perform their duty diligently, undertake an investigation and take any appropriate action to protect him if need be. Additionally, the Adjudicator gave due consideration to internal relocation[5] and found that this was available and reasonable.  The Applicant however, believed it was not possible for him to relocate to other parts of Bangladesh because he believed all AL people could locate him.  The Adjudicator rejected this on the evidence and found it was entirely possible for the Applicant to relocate safely out of harm’s way in light of his age, education, work experience, the size of Bangladesh, its population and the job prospects. 

31.In assessment of the Applicant’s evidence and credibility, the Adjudicator found the Applicant was not a reliable witness and concluded his accounts were incredible, inconsistent and improbable.[6] The Adjudicator disregarded the Applicant’s reasons as to why he did not report the matter to the police.  The Applicant’s claim that he feared the police taking revenge on him and that he feared them was found not to be an acceptable reason.  Additionally, the Adjudicator noted that there were other options open to the Applicant to seek redress, options he did not take. 

32.Further, the Applicant did not provide material evidence in support of his assertions.  His claim centered on the fact that he owned and ran a printing business.  He was unable to provide proof that the he owned and ran a printing business and was not even able to provide any evidence that this business even existed.  The Adjudicator provided a list of documentary evidence that he surmised should be in existence such as business registration records, tax records, bank statements, lease agreements, correspondence, sales and purchase records.  The Adjudicator also pointed out that as a result of having this business, the Applicant would have a number of legal matters and obligations to deal with before he left Bangladesh.  He noted that the Applicant provided no evidence of this and only gave a general account description of his leaving Bangladesh for China.  Further, the Adjudicator rejected that Applicant’s account as to his activities whilst in India and then in China and the fact that he did nothing but hang around the hotel.

Grounds

33.The Applicant’s submissions in support are what can only be described as repetitive and mostly incoherent.  It appears that the sole ground for review is that the decision was procedurally unfair. As far as I am to understand it, this is submitted on the basis that:

1. the Applicant was not given the opportunity to submit additional facts and grounds in support of his BOR 2 claim as he did not receive any letter stating that it was open for him to do so (“Ground 1”);

2. the Applicant’s assigned interpreter “misinterpreted” and “misguided” the Applicant at the TCAB hearing and told the Applicant not to answer the questions of the Adjudicator (“Ground 2”);

3. the Adjudicator failed to carry out sufficient research and inquiry into the COI (“Ground 3”); and

4. the Adjudicator failed to take into account or put sufficient weight on highly relevant COI information and put full weight on COI information that was not relevant (“Ground 4”);

Law

34.Before turning to the discussion in detail, I set out now the general principles.  The court in judicial review is only to look at the legality of the underlying decision but not its merits.  Judicial review is also not a further or alternative appeal procedure.  In the context of judicial review of a decision the court in the exercise of its supervisory jurisdiction is to examine whether the Director or Adjudicator in dismissing the Applicant’s claim:

(a) committed any error of law;

(b) handled the claim without compliance with the high standard of fairness as required by the law and

(c) the substantive decision satisfied the enhanced Wednesbury test.

35.The enhanced Wednesbury test is simply an application of the Wednesbury test by means of a rigorous examination and anxious scrutiny of the decision-making process and the reasons by which the decision-maker reached his decision: Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, at §45; AM v Director of Immigration & Anor [2013] HKCFI 1924; [2014] 1 HKC 416, at §34.

36.The test in granting leave for judicial review proceedings is whether the judicial review grounds are reasonably arguable with a realistic prospect of success. Peter Po Fun Chan v Winnie CW Cheung & Anor (2007) 10 HKCFAR 676.

37.As to the high standard of fairness, Chief Justice Li in Prabakar stated:

“The question in this appeal concerns the standards of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportee’s claim that he would be subjected to torture if returned to the country concerned. One is concerned with procedural fairness and there is of course no universal set of standards which are applicable to all situations. What are the appropriate standards of fairness depends on an examination of all aspects relating to the decision in question, including its context and its nature and subject matter… If the courts decide that they have not been met, the determination will be held to have been made unlawfully.” (at §§43-45) (emphasis added)

Discussion

38.For convenience, I will consider the first two grounds together. 

Grounds 1 and 2

39.In Ground 1, the Applicant makes repeated references in his submissions that he was not given the opportunity to submit additional facts and grounds in support of his BOR 2 claim as he did not receive any letter stating that it was open for him to do so. 

40.The second ground alleges that the interpreter told him not to answer the questions of the Adjudicator.  That is a bare allegation with no particulars. 

41.There are no merits in these grounds.  It is clear from the findings of the Adjudicator that the Applicant was given ample opportunity to advance further evidence at the 9 February 2017 hearing.  The Adjudicator specifically explained to him that the Board would not have the benefit of hearing and considering his further evidence[7]. Even if the Applicant did not receive any correspondence requesting the submission of additional facts and grounds as he claims, he was given the opportunity at the TCAB hearing and he was given that opportunity more than once. 

42.In TK v Micheal Jenkins & Anor [2003] 1 HKC 526, the Court of Appeal stated quite clearly that high standards of fairness dictate that the claimant be given “every reasonable opportunity to establish his claim”.  The Adjudicator did that by holding an oral hearing and giving the Applicant ample opportunity to establish his case[8].  These opportunities were declined by the Applicant.  This, of course, is his right.  However, to now say that he was not afforded the chance quite clearly is inaccurate.  

43.Additionally, the Applicant chose not to give any further evidence and adopted the evidence in his appeal bundle in support.  The Applicant was further informed of the consequences of this omission to give evidence but was insistent that he did not want to answer any questions as everything that needed to be said was in the appeal bundle. Additionally, the Applicant did not have anything to say in final submissions. From this it is clear that he was given ample opportunity to adduce any evidence but repeatedly chose not to do so.  There was no failure or error in this regard.

44.The Applicant adopted his appeal bundle as evidence and chose not to adduce further evidence despite the Adjudicator asking.  This scenario negated the need for interpretation at any significant length.  It would appear that the interpretation was necessary for a mere few rudimentary questions asked of the Applicant.  Common sense dictates there to be little room for any misinterpretation or guidance under those circumstances.  There is no basis or particulars for the Applicant’s ground that the interpreter told him not to answer questions.  There is no merit in this ground. 

45.As there is a clear overlap, I shall consider Grounds 3 and 4 together.

46.There is no basis at all for the arguments put forward in Ground 3 and Ground 4.  The Adjudicator considered ample materials.  He provided a list of those items he perused and considered and it is apparent to me he scrutinised them thoroughly.  He plainly demonstrated a reasonable evaluation of the materials. 

47.The Applicant contends that the Adjudicator took on what can be described as a selective approach in his assessment of the COI information (Ground 4).  Some parts were favourable to the Applicant’s claim, while others were not. 

48.It is within the ambit of the Adjudicator to place greater weight on some factual materials and less weight on other materials as laid out by Chung A J in Yu Yun v Torture Claims Appeal Board [2017] 1 HKLRD 488, CFI, (at §§10 and 11) where he said: 

“The challenged decisions, as the fact-finding tribunals, were entitled to evaluate the factual materials placed before them. Those materials would include the COI reports. The evaluation has not been shown to be unreasonable or against the overall weight of the evidence… Similarly, the fact that a fact-finding tribunal has placed greater weight on some of the factual materials and less weight on other materials is a process within the tribunal’s power to do so. This cannot properly be viewed as being selective.” (emphasis added)

49.Fundamentally, the decision of the Adjudicator was made on the credibility of the Applicant.  He disbelieved the Applicant.  He provided cogent and thorough findings on credibility and found against the Applicant on this.  The Adjudicator provided a clear analysis as to why the evidence had caused him to cast doubt on the truthfulness of the evidence. 

50.The Adjudicator is in the best position to make such a finding of fact even though this was an oral hearing that appears to be on the short side due to the Applicant adducing no further evidence than what was in his appeal bundle.  The Adjudicator thus made his decision and thoroughly highlighted and discussed all the inconsistencies which brought him to his decision.  It was an analysis that was logical and without fault.  

51.The Adjudicator simply did not believe the Applicant was a genuine claimant. 

Conclusion

52.I do not find there to be any error of law by the Director or the Adjudicator.  They exercised a high standard of fairness in their assessment, there was no procedural unfairness. Further, the decisions did satisfy the enhanced Wednesbury test, they were not Wednesbury unreasonable. 

53.The Applicant’s claim is not reasonably arguable.  There is no realistic prospect of success.  The Applicant’s application for judicial review is refused.

Dated 5^th 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 the application in the light of the respondent’s evidence.

Form CALL-1

[1] Mr Li Wai-chi

[2] Paras 47-68

[3] Paras 29-34

[4] Paras 20-25

[5] Paras 26-28 and para 52

[6] Paras 39-46

[7] TCAB findings para 37

[8] TCAB findings para 35