Ahmed Payer v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL363/2017

[2018] HKCFI 251

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 363 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 national who claimed to have entered Hong Kong illegally by boat on 7 July 2014 only to be immediately arrested by the police.  The applicant lodged a non-refoulement protection claim on 12 July 2014 which was rejected by the Director of Immigration (“the Director”) on 1 April 2016 and 8 May 2017.  He then lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 8 June 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 6 July 2017 and requested an oral hearing which was set down for 31 October 2017.  The applicant appeared in person having had his application for legal aid refused.

2.The basis of his claim was that if he were to return to Bangladesh he would be harmed or even killed by members of the Awami League (“AL”) because he refused to join their party.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in full in their decisions therefore I only intend to summarise it here.

3.The applicant was born in 1990, received 10 years of education and then worked as a salesman in a tailor’s for a couple of years from 2006.  He joined the student wing of the Bangladesh Nationalist Party (“BNP”) when he was 18 years old.  He was quite an active participant for the student wing and believes he caught the attention of the opposition party, the AL.  Not long after he joined the BNP, four supporters of the AL confronted him and requested he join their party.  He told them he was loyal to the BNP and refused.  They told him to be very careful or he would be attacked.  They demanded he stop all party politics and activities or his life was in danger.  They only verbally threatened him; he was never physically touched.  He did not report these threats to the police.

4.A few days after this conversation, he heard from other villagers that some BNP supporters suddenly disappeared and he believed that the AL supporters were behind it.  He was worried for his own safety and moved to stay with his friend Babu in Dhaka.  His family told him that some AL supporters came to his home to look for him.  They warned him not to come home.  In November 2013, his family told him that some AL supporters found out he was in Dhaka and they urged him to leave Bangladesh for his own safety.  A few days later, the applicant received a call from one of the AL supporters that had verbally threatened him; he told him they were coming to Dhaka to find him.

5.His friend Babu suggested he travel to China so the applicant left Bangladesh on 31 January 2014.  He then after a few months entered Hong Kong by boat illegally on 7 July 2014.

6.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”).

7.The adjudicator of the TCAB treated the appeal/petition as a rehearing.  He correctly set out the law, key legal principles and authorities relevant to the four applicable grounds in his decision.  He considered the standard of proof and burden of proof.  He also considered and compared the applicant’s oral evidence during the hearing to his evidence previously recorded and submitted in the appeal bundle.

8.The adjudicator found the applicant an unreliable witness and his evidence not credible.  During the appeal he was evasive and his answers vague.  He was unable to answer many questions.  The adjudicator found when he asked for explanations they were unsatisfactory.  He found contradictions in his evidence which he set out in his decision.  They led the adjudicator to find the applicant was not a witness of truth.  He did not believe he was driven out of his own country by fear from threats from four supporters of the AL.

9.In spite this finding, the adjudicator went on to consider the four applicable grounds on the basis that the applicant was telling the truth. He went on to find that even if he was telling the truth he could not invoke the protection of BOR 3 because he was unable to meet the two main requirements necessary.  There was no evidence at all to show that the ill-treatment he would face if expelled attains a minimum level of severity and no evidence he faces a genuine and substantial risk of being subjected to such ill-treatment.  There was no evidence of a risk to his life under BOR 2.

10.As far as the persecution risk is concerned, although the dispute can be very loosely regarded as one resulting from membership of a particular social group or political opinion, the adjudicator found the likelihood that the applicant would face the feared treatment was not real and his fear was not well-founded.  This risk was not made out.

11.The adjudicator considered the definition of torture under Section 37U(1) of the Immigration Ordinance and found no severe pain or suffering within that definition had been suffered by the applicant nor was the claimed risk of ill-treatment in the future assessed to be real and foreseeable.  There were no substantial grounds for believing he would be subjected to torture if refouled.  The torture risk claim failed.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

12.The applicant has sought to judicial review both the Director’s decision as well as the adjudicator’s decision.  However, in my view this is not the appropriate 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 therefore, no room for a judicial review of the Director’s decision now.  I have considered the grounds of this application against the decision of the TCAB only.

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

14.There are allegations that the decision-makers, including the adjudicator of the TCAB cherry picked at country of origin information to form the basis of his decision.  There are no particulars to support this ground.  I see no country of origin information relied upon by the adjudicator.  There is no merit in this ground.

15.The adjudicator is accused of failing to consider the extended concept of State acquiescence.  This was not part of the applicant’s case or claim and therefore not considered by the adjudicator.  There is no merit in this ground.

16.I am unable to understand the last ground but it is a reference to the country of origin report and country conditions in Bangladesh. As I said above, the adjudicator did not consider such information.  He did not need to having found the applicant not credible.  There is no merit in this ground as far as I can understand it.

17.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.  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 9^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 their application in the light of the Respondent’s evidence

Form CALL-1