Haque Azizul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL442/2017

[2018] HKCFI 293

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 442 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 claimed to have entered Hong Kong illegally by boat on 9 March 2016 only to be arrested on the same day by the police.  He lodged a non‑refoulement claim on 13 March 2016 which was rejected by the Director of Immigration (“the Director”) on 8 November 2016.  He lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which heard his appeal on 19 May and rejected it on 19 July 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 25 July 2017 and requested an oral hearing if leave was not granted on the papers which was set down for 17 November 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 he would be harmed or even killed by members of the Awami League (“AL”) because he was a member of the Bangladesh Nationalist Party (“BNP”) and he had refused to join their party.  Also, he had witnessed the death of his friend called Raja murdered by members of AL.  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.

3.The applicant was born in 1978, had nine years of education, was married with two children and worked in the family‑owned shop.  He became active in the BNP in about 2004 or 2008 and became a member in 2008.  In a huge demonstration in 2012 he was arrested with 40 or 50 others, verbally abused at the police station and then released.  In the same year some AL members began to approach him and threatened him if he did not switch allegiance to their party.  He refused and one day was kidnapped, thrown in a van and taken to a house outside their village. He was beaten up with wooden rods and electrocuted but released about an hour later.  He received medical treatment in the local hospital and unsuccessfully tried to report it to the police.

4.Between 2012 and 2015 he continued to receive verbal threats.  In 2015 he, Raja and other BNP members went to a government office to submit a tender for some construction work.  Some AL members at the office told them to withdraw their tender but they refused and were later successful in getting it.  Not long after, he and Raja were stopped on their motorbike in August 2015 by AL members and beaten with sticks and machetes.  The applicant managed to escape but his friend was later found dead in a pond with his arms and legs cut by machetes.  The applicant did go to a hospital but then fled to his mother-in-law’s home, then to his uncle in Dhaka before he left Bangladesh for India.  He did return to Bangladesh but then arranged to travel to Hong Kong.

5.The Director and the adjudicator 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”).

6.The applicant has sought to judicial review both the decisions of the Director and the adjudicator of the TCAB.  However, in my view, this is not the appropriate or 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 now.  I have only considered his grounds of this application against the decision of the TCAB.

7.The adjudicator of the TCAB treated the appeal/petition as a rehearing and correctly set out the law and key legal principles applicable to the four grounds.  He also set out the principles and test for assessing the credibility of the applicant and his claim in the overall context of considering whether he faces a real risk of persecution, torture or CIDTP.  He considered it possible that the applicant may exaggerate, being consistent or even untruthful yet it is still quite plausible for the centrepiece of his claim to stand.

8.The adjudicator accepted that there was a wide spread problem of low level political violence of the type described by the applicant between members of the BNP and the AL, particularly during election time.  The claim that the applicant as a low-level party activist for the BNP, could have been targeted for violent attack by low-level party activist for the opposition party is therefore plausible.  That does not make his evidence credible, it is for him to demonstrate by way of reasonably detailed, internally coherent and generally credible evidence that he is describing events in which he actually participated.

9.After the adjudicator considered his evidence prior to the hearing and at the hearing he found the applicant not to be a witness of truth.  He did not believe he was describing events he personally experienced.  The adjudicator did not find him at all credible.  He said his oral evidence at the appeal hearing was remarkably vague, inconsistent on fundamental and material points and I quote, “was internally incoherent to such an extent that I was initially concerned that I may have prepared the papers for a different appellant hearing.”

10.The adjudicator goes on to give very specific and detailed reasons why he does not believe the applicant.  He concludes with “while perfect consistency is not to be expected, reasonable level of the hearing and detailed testimony in relation to key and central elements of such a claim is not too much to be expected.  The quite remarkable vagueness of the appellant’s account as well as his failure to give even a minimally coherent description of the alleged events strongly suggests to me that his account was a fabrication.”

11.The applicant’s documents were not accepted either; they purported to corroborate his evidence.  The applicant agreed that the medical certificates were dictated by him; contain information given to the writers by the applicant.  They were not corroborative or of real medical value.

12.In light of the adjudicator’s finding that the applicant was not a genuine claimant and that his account was entirely false and if application to which no credence whatsoever could be attached, the adjudicator went on to find that the applicant was not at risk of torture if he returned to Bangladesh, nor at risk of ill-treatment under BOR 3 or at risk of a violation of his rights under BOR 2 or had a well-founded fear of being persecuted for a Refugee Convention reason.  He confirmed the decision of the Director.

Leave to apply for judicial review

13.I have considered with rigourous examination and anxious scrutiny the papers and the grounds of this application.  I find the adjudicator’s decision to be without fault.  He analysed the material, claim and evidence carefully.

14.The applicant claims in his grounds that the appeal board committed an error of law in that it failed to treat the appeal as a rehearing.  He failed to independently assessed the Country of Origin conditions and the concept of State acquiescence.  He did not obtain all the relevant Country of Origin information, only referring to the applicant’s supporting documents and evidence.  The adjudicator failed to consider the legal principles of State acquiescence.

15.The adjudicator had no need to consider State acquiescence or Country of Origin information in depth because he found the applicant failed in his claim because he was not credible.  There was no need therefore for the adjudicator to go on and evaluate or consider that information or that concept.

16.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.

17.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