Bapari Md Shahin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL411/2017

[2018] HKCFI 291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 411 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 17 July 2014 only to be arrested by police on the same day.  He lodged a non-refoulement claim which was rejected by the Director of Immigration (“the Director”) on 21 November 2016.  He lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected it on 23 June 2017.  The applicant filed a notice of application for leave to apply for judicial review on 17 July 2017 and requested an oral hearing which was set down for 9 November 2017.  The applicant appeared in person having had his application for legal aid refused.

2.The basis of the applicant’s claim was that if he were to return to Bangladesh he would be harmed or even killed by members of the Awami League (“AL”) and will face arrest by the police under an arrest warrant issued.  Both the Director and the adjudicator set out the applicant’s claim and evidence in great detail in their decisions and I do not intend to repeat it.  I will summarise it here only.

3.The applicant was born in Shariatpur in 1991 and from 2011 to April 2014 was studying a bachelor’s degree course at the university there but did not complete it.  He became an active member of the Bangladesh Nationalist Party (“BNP”) in 2010.  In 2013 he was selected to be the senior vice president of the BNP of his university.  The applicant’s case describes eight incidents of attacks by AL members which led to his decision to leave Bangladesh.  They are all set out in the decisions.

4.The first began in March 2011 with a bomb attack on their BNP club followed by 400 to 500 AL members bursting in brandishing weapons and vandalising the club.  The second attack was in December 2011 when 100 AL members surrounded the applicant’s house and damaged it but he was not home.  The third was on 26 March 2012 during a BNP meeting in a field when 500 AL members armed with weapons attacked the applicant and other members.  Later the applicant and others were falsely charged with keeping and using illegal weapons.

5.The fourth attack was on 1 January 2013 after he became senior vice president of the BNP of his university when he was attacked by 20 to 25 AL members who told him to leave the country or he would be killed.  They beat him until he was unconscious.  The fifth attack was in March 2013 the BNP club when 50 to 60 AL members armed with weapons attacked them.  The applicant was the target because he was the senior vice president of the BNP of his university.  He was injured by a knife during the attack.

6.The sixth incident was on 1 June 2013 after a meeting when he became a member of the student wing of the BNP; more than 100 AL members arrived armed with weapons and attacked them.  Again the applicant and other BNP officials were falsely arrested and framed.  The seventh incident was in December 2013 at a university ceremony when 100 AL members armed with weapons interrupted the ceremony and the applicant was injured in the clash.  The eighth incident happened in May 2014 when a member of Parliament of the Awami League arrived with 300 AL members armed with weapons; the applicant was attacked and told to leave the country or he would die.

7.After this eighth incident the applicant went to Dhaka and made plans to leave the Bangladesh for Hong Kong where he has been participating in BNP activities since he arrived.  He believes internal relocation in Bangladesh is not possible whilst the AL is ruling the country.

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 treated the appeal hearing as a rehearing. She correctly set out the law and key legal principles applicable to all four grounds.  She meticulously considered the evidence and considered his credibility.  She specifically considered the principles and authorities peculiar and relevant to assessing credibility in these particular claims.  She considered the internal consistency of his account by referring to his oral testimony compared to his written statements and interviews.  She also considered his claims objectively when referring to Country of Origin (“COI”) material and other generally known facts about Bangladesh to assess if what he claims was to a reasonable degree plausible.

10.She showed considerable knowledge of the history of the two major political parties in Bangladesh, the AL and the BNP; much more than the applicant himself.  In fact, the adjudicator asked the applicant some simple questions about his involvement with the BNP and the JCD, the student wing.  A reading of his answers to her questions show that his knowledge of his own party was very superficial.  His knowledge of his own dates and details was vague.  When referred to reliable COI information that contradicted his answers, he declined to comment on several occasions.  She found he at most mixed politically with students; nothing showed he had links with political persons at district or national level in the BNP party.  Nothing showed he would attract the attention of the opposition party as alleged.  She then asked him about several inconsistencies in his evidence relating to the eight attacks and she recorded down his explanations which appeared weak.

11.She asked him questions about the alleged false allegations and warrant of arrest against him.  Apparently no one in his family have been allowed to look at the warrant.  There was an anomaly in the documents relating to an apparent false charge of murder against the applicant. The adjudicator found in a police document a statement allegedly approving the charge of murder on the date of 15 May 2016 and citing the section of the penal code.  The adjudicator looked up the penal code and found that section to be referring to the punishment for murder instead of the crime of murder. She pointed this out the applicant who had no comment.  There was a similar mistake in another document allegedly approving the charge of firearm offences where the author of the document cited sections referring to the punishment and sentence instead of the crime itself.

12.The adjudicator specifically addressed the applicant’s assertions against a BM Mozammel Haque, a member of Parliament of the AL who he says specifically targeted the applicant, gave specific orders to assault him, threatened to kill him and did these acts in person with others armed with weapons.  The applicant referred to him as his political enemy. However, there was no evidence of this man’s political position or existence from the applicant which would not be hard to obtain.  In any event, the applicant agreed with the adjudicator that there were many other BNP members more senior than him in his area according to the constitution of the BNP.  There was no reason why the applicant would be targeted instead of these more senior officials.  The adjudicator found it to be implausible, illogical and irrational for a senior member of the AL to target the applicant as alleged.

13.The adjudicator made many findings after careful analysis of the applicant’s evidence.  She clearly found he exaggerated his political influence and prowess.  She did not believe he had attracted the attention of the AL party personally.  She found no evidence that he himself had lodged complaints against the AL members at the police station on numerous occasions.  She found no evidence that the government or the police acquiesced in the alleged ill-treatment of him personally.  She carefully considered the documents that were allegedly official police documents and set out the anomalies relating to the mistakes inciting sections of the penal code which led her to find they do not support his claim that he has had false cases lodged against him.  She considered those anomalies in light of the country information on the prevalence and ease of obtaining false documents in Bangladesh.  The same applied to the alleged arrest warrant; there was not even any evidence it related to him.  The adjudicator then applied her findings to the four applicable grounds.

14.As far as the persecution risk is concerned, the adjudicator considered all the evidence purporting to show a ground of persecution for political opinion and found the applicant failed to show he had a well-founded fear of being persecuted for this reason.  He was unable to establish he was the political man he said he was unable to show he was targeted as alleged.  He also failed to show that he is unable or unwilling because of his fear to avail himself of the protection of his country of nationality.  The adjudicator found nothing to indicate that if he returned to Bangladesh, the applicant will not be afforded the requisite level of protection from his government.  His persecution risk claim failed.

15.The adjudicator considered the definition of torture as adopted in section 37U(1) of Cap 115.  From his own facts, he has failed to satisfy the elements in the definition of torture set out in that section.  He has failed to adduce evidence to show that there is a risk of his being subjected to torture if refouled. His torture risk claim failed.

16.For the applicant to invoke the protection of BOR 3, he must meet two main requirements which the adjudicator found he had failed to do.  He failed to establish that the ill‑treatment which he would face if expelled attains what has been called a minimum level of severity and that he faces a genuine and substantial risk of being subjected to such mistreatment.  His BOR 3 risk claim failed.

17.The adjudicator has found the applicant has failed to invoke the protection of BOR 2 because there is no evidence to show there will be a necessary and foreseeable breach of the right protected by BOR 2.  There is no evidence to show he will be at risk of harm from capital punishment inflicted by the government of Bangladesh or face harm from the government that would place his life at risk.  His BOR 2 risk claim failed. The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

18.The applicant seeks to judicial review the decisions of both the Director and the adjudicator of the TCAB.  In my view 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 a rehearing.  There is no room for a judicial review of the Director’s decision.  I have considered the grounds of his application against the decision of the TCAB only.

19.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the decision to be without fault.  The adjudicator analysed the material, claims and evidence carefully, logically and with great caution.  The applicant’s complaints in the affirmation against her and the procedure undertaken are not made out.

20.I find no substance in the grounds of this application.  What was in the supporting affirmation does not cover all the grounds set out nor are they substantiated with particulars. The applicant alleges a failure to conduct sufficient independent enquiry into relevant COI information and other failures involving that information and the applicant’s own documentary information.  I am satisfied the adjudicator carefully considered objective, up-to-date, substantive and sufficient COI information to make informed decisions.  She gave sufficient explanations for her decisions.  She gives explanations for why she rejected the documents she did.  There is no merit in this ground.

21.The applicant complains that there is a failure to consider the physical and psychological harm inflicted upon him but that was not raised as part of the applicant’s case and I see no reason why either the Director or the adjudicator should have considered it necessary to call for medical reports during the assessment.  There is no merit in this ground.

22.Lastly there is a complaint that the adjudicator failed to properly consider persecution; the fact he was attacked on more than eight occasions, was seriously injured, received death threats and is falsely accused of crimes all arose from his political views and membership of the BNP proves persecution and is conduct that support a well-founded fear.  However, the adjudicator clearly had her doubts about the applicant’s credibility as far as his political party connections and his evidence of his party importance was concerned.  This meant she found he was unable to establish a well-founded fear of persecution.  I am satisfied she gave very sound reasons for her findings.  There is no merit in this ground.

23.I do not find any ground that shows there was an error 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 23^rd 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