Uddin Imtiaz v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL378/2017

[2018] HKCFI 252

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 378 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 illegally entered Hong Kong on 16 December 2013 by boat only to be arrested on 18 December by the police.  He then lodged a non‑refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 9 March 2016 and 16 May 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 7 July 2017.  He then filed a notice of application for leave to apply for judicial review on 10 July 2017 and requested an oral hearing which was set down for 27 October 2017.  The applicant appeared in person because his application for legal aid was refused.

2.The basis of the applicant’s claim was that if he were to return to Bangladesh’s life was in danger and he would be harmed or killed by the Awami League (“AL”) because he was a member of JeI, an opposition political party.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in their decisions therefore I only intend to summarise it here.

3.The applicant received 12 years of education and first worked as a teacher before working for a NGO in Harinakunda for a year in 2001.  In 2002, for four years the applicant then farmed his own family land in Harinakunda.  He then went to work for Panasonic in Malaysia for two years in a factory.  When he returned home, he worked as a driver for a year before farming again.  From 2012 to 2013 he went to work in a factory as well as did some tutoring in Dhaka.  The applicant is married with two children.

4.Since he was young he has been associated with JeI, starting with their student wing.  It is the largest Islamic political party in Bangladesh.  He attended rallies and did some promotional work for the party.  After he finished school, he became an ordinary member of the mainstream party.  He did not hold any posts in the party.  When the AL became the ruling party in Bangladesh in 2009 they were aggressive and attacked senior leaders of the other parties.

5.The applicant himself became a target and was from early 2012 attacked on three occasions and assaulted by members of the AL. The first attack was in January 2012 when he was attacked by three or four AL supporters he recognised.  They told him to leave the JeI or he would be killed but the applicant refused and was beaten and kicked quite severely.  He did see a doctor who gave him some painkillers but he took about three weeks to recover and still, to date, has residual pain in his right shoulder.  The applicant did not report this to the police because they supported the AL party.  This did not stop the applicant supporting and working for the JeI.

6.The second occasion was about four months later when the applicant and his friend Babul were ambushed by seven or eight AL members and again beaten, punched and kicked all over severely.  Both men were threatened again and told to leave their party or else they would die.  Both men saw a doctor who prescribed painkillers and bed rest; the applicant took a month to recover.  Again the applicant did not report this to the police because he thought it would be futile.

7.The third occasion was in mid-2012 when his political party was holding a large meeting at a playground in a college with about 300 people in attendance.  Suddenly about 400 AL supporters appeared with 40 police officers and told them to leave immediately or they would be attacked.  An argument broke out between senior members of the JeI and AL which became physical and everyone from both parties joined in the melee.  The police used batons to help the AL drive away the JeI.  The applicant was kicked and punched to the ground.  He cut his leg on a rod with sharp edges and was in extreme pain.  He was beaten unconscious and woke up in hospital.  His right leg had been cut and was bandaged but he was discharged that same day.  He took six weeks to recover.

8.After this third attack, the applicant did not feel safe anymore in the village and his wife and family told him to move to Dhaka in mid-2012.  Many of his friends from the JeI including Babul had left the village as well fearing for their own safety.  In Dakar he stayed with a friend, remaining inside his home at first until he later got a job in a factory and tutoring children in his neighbourhood.  His family at home told him that people from the AL went to their home a few times asking for his whereabouts and threatened to kill him if they found him.

9.Despite the distance he put between himself and his home village, the applicant did not feel safe.  It was reported in the media that leaders are members from his political party were being killed and hanged by the authorities; the ruling party were falsely accusing them of terrorist acts and having links with terrorist groups.  He was worried that sooner or later the AL would locate him so he planned to leave Bangladesh.  On 14 June 2013 the applicant left Bangladesh for Mainland China.  He stayed there for six months before it was arranged for him to go to Hong Kong by boat.

10.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”).

11.The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  The applicant decided to answer questions and give evidence.  The adjudicator set out the law and key legal principles relevant to the four applicable grounds.  In arriving at his decision, he initially treated the applicant’s account of events as truthful.

12.He considered his definition of the definition of torture under Article 1 of the Convention against Torture, which is replicated in section 37U(1) of Cap 115.  It is the applicant’s burden of proof to show there were substantial grounds for believing he would be in danger of being subjected to torture if refouled.  The applicant must establish substantial grounds showing a foreseeable, real, and personal risk.  The adjudicator found the applicant unable to identify any of his attackers, his evidence was vague as to their identity.  The mere fact that he identifies them as AL people or supporters did not mean that their attacks were instigated or authorised by the State or government.  There was insufficient evidence to prove they were acting in any official capacity.

13.The adjudicator considered the nonexistence of passive acquiescence, the possibility of internal relocation and the Country of Origin (“COI”) information.  It is not clear if any COI information that supported submissions or allegations made by the applicant was considered but he refers to COI that shows steps taken to combat corruption and concludes State protection is reasonably available to victims of crime.  He also finds COI information supports a finding that internal relocation is a viable option without undue hardship for an able-bodied young man with work experience.  Therefore, his torture risk claim failed.

14.To seek non-refoulement protection under BOR 3, the applicant had to show the ill‑treatment he would face if he returned would attain a minimum level of severity and there was a genuine and substantial risk of being subjected to such ill-treatment.  The adjudicator found the applicant did not suffer any serious physical or mental harm before he left Bangladesh.  The adjudicator was not persuaded he would be subjected to ill‑treatment amounting to torture or CIDTP if he were refouled.  The BOR 3 risk claim failed.

15.The Director did reject the applicant’s BOR 2 risk claim but after the oral hearing date of 10 April 2017.  The adjudicator did not find it necessary to conduct another oral hearing because there were no new facts, evidence or issues to be dealt with.  The applicant had submitted additional facts to the Director to support a BOR 2 risk claim but it was material not personal or related to the applicant.  It was material highlighting crimes in his home area committed by gangsters as well as by the police and militia indicating that Bangladesh was the most violent country at this time.  It did not change the applicant’s case.  The adjudicator made a finding that on the applicant’s facts he was not at risk of being arbitrarily deprived of his life; his BOR 2 risk claim failed.

16.The adjudicator considered the persecution risk and found on the applicant’s own evidence he had failed to establish that he had a well-founded fear of being persecuted on account of a refugee convention reason.  The adjudicator finds the applicant has not suffered severe injury or serious harm which would place him within the criteria of persecution.  This is not necessary; the applicant does not have to have suffered severe injury or serious harm already.  However, I agree with the next sentence, the adjudicator finds no substantial ground to believe he will face a future risk of serious harm.  That is a requirement as is a well-founded fear and if those are not proved to exist then the persecution risk claim fails.  The adjudicator confirmed the decision of the Director and dismissed the appeal.

17.However, he then went on to consider the credibility of the applicant and give reasons for why he found the applicant not credible.  It seems the purpose of this is to show that a dishonest and unreliable applicant would fail to establish his claim, irrespective of the fact that all the alleged misfortunes, even if they were true, failed to establish any of the applicable grounds.

Leave to apply for judicial review

18.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.  The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

19.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.  The applicant submitted in the hearing he did complain in the appeal that his duty lawyer did not represent him properly.  However, in the decision there is no record of any complaint made to the adjudicator concerning the performance of the lawyer assigned.  I have my doubts whether he did complain as he could give me no particulars.  Another example would be 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.

20.In grounds 1, 2, and 4, it is submitted the adjudicator failed to consider relevant and up‑to-date COI material and 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 list what material he referred to in reaching his conclusion.  As for ground 4, despite a lack of particulars, the applicant made no police report and there was no evidence that the State failed to provide reasonable protection or that the State deliberately did nothing to assist the applicant.  These grounds are not reasonably arguable.

21.The applicant complains he was not given sufficient time to prepare for his hearing, 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.  There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal.

22.There is also a complaint that the Director did not screen or assess the BOR 2 risk claim before the adjudicator of the TCAB.  This submission makes no sense when the adjudicator had to decide whether or not to conduct a 2^nd oral hearing during the appeal process to specifically deal with the BOR 2 risk claim.  This can only mean it had been screened and rejected by the Director already and then subject to appeal.  In any event, the applicant agrees he had asked for and was granted more time by the Director to submit information to support a BOR 2 claim before it went to appeal.

23.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.

24.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