Sheikh Al Islam v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL377/2017
[2018] HKCFI 385

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 377 of 2017

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 3 July 2013.  He was arrested by the police on 10 July 2013.  He lodged a non-refoulement protection claim which the Director of Immigration (“the Director”) rejected on 26 January 2016 and 9 February 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 23 June 2017.  The applicant filed a notice of application for leave to apply for judicial review on 10 July 2017.  He requested an oral hearing which was set down for 31 October 2017.  The applicant appeared in person after his application for legal aid was refused.

2.The basis of the applicant’s claim is that he will be harmed or even killed by several people from the Awami League (“AL”) as well as framed for a false charge if he returns to Bangladesh.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in detail in their decisions therefore I only intend to summarise it here.

3.The applicant comes from a family of Bangladesh Nationalist Party (“BNP”) supporters and he himself was a member since about 2007.  He was single, had little education, had worked in Dubai and then his brother’s sweet shop at home.  There was a general election in early 2014 and from about the end of 2012, members of the AL in his home of Munshiganj put pressure on him to resign from the BNP and threatened him.

4.At the end of 2012 or early 2013, five men from the AL came to the sweet shop, physically abused him, threatened him and demanded he resign from the BNP.  He was told to stop working for the BNP or else they would kill him.  They damaged the shop and stole some money.  He tried to register a complaint with the police station but the police refused to register his case because it was a complaint against AL members.

5.The same five men came to the shop regularly over the next two to three months and stole goods without paying and verbally threatened the applicant with death threats.  Not long after, the applicant was playing cricket when a group of AL members ran at the applicant and other BNP members with knives and iron rods shouting his name and threatening to kill him and the others.  The applicant and the others escaped unharmed but were frightened.  The applicant did not report this to the police because of a previous failure to register his complaint.

6.At about the same time, the same AL people filed a false murder and robbery case against the applicant and some of his relatives and friends.  The apparent murdered victim was one of the AL members but was alive and well.  The applicant managed to evade arrest when the police came to his home and left his village to stay with his aunt and stayed away for two months.  He believed it was just a reason to extort money from him and after the other suspects surrendered and were given bail, the applicant followed suit.  A negotiation began and the applicant’s family paid 150,000 takas for the false charge to be withdrawn.

7.During the negotiation period, the applicant contacted a travel agent to arrange travel out of the country.  The applicant left Bangladesh on 29 April 2013 before the withdrawal of the false murder case.  He arrived in China thinking he was flying to South Korea.  He remained there for two months before paying more money to be taken to Hong Kong illegally by boat.  After he arrived in Hong Kong, his father told him that the false charge had been withdrawn but not to return home because the AL people might file another false charge and demand more money if he returned.  If he failed to pay, they will kill him.

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 as a rehearing.  He set out the law and key legal principles applicable to all four grounds.  He conducted an oral hearing and the applicant elected to answer questions.

10.The adjudicator considered the four applicable grounds, the applicant’s claim and evidence.  To consider whether there is a claim under the torture risk, the adjudicator should consider the definition of torture as set out in section 37U(1) of the Immigration Ordinance Cap 115. Following that definition, the adjudicator did consider, on the applicant’s own evidence, he had not suffered any severe injury or serious harm before he left Bangladesh.  There was also no evidence to establish substantial grounds to show a foreseeable and real risk in the future of torture.

11.Moreover, he was certainly not assaulted by anybody acting in the official capacity of the State.  There was no evidence that even if he was assaulted by members of the AL, their acts were (or any further acts by them) at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.  The adjudicator found the torture risk claim failed.

12.The adjudicator says he noted Part A of the Director’s notice of decision which I take to mean he read it and adopted it.  It is certainly in detail, objective and considers the applicant’s assertions in full and considers Country of Origin (“COI”) information that supports his assertions as well.

13.The adjudicator sets out a summary of COI information he considered and put to the applicant and his responses.  The adjudicator found the list of COI information showed State protection was reasonably available to victims of crime and that internal relocation was a viable option because his enemies would not be able to find him if he lived in one of the big cities in Bangladesh.

14.The adjudicator considered the BOR 3 risk and found the applicant had not suffered any severe injury or serious harm which would place him within the criteria of torture or CIDTP.  He could find no evidence or substantial grounds to believe if he were refouled to Bangladesh he would face any future risk of serious harm therefore, his BOR 3 risk claim failed.

15.The adjudicator found no evidence of any substantial risk to the applicant’s life that would constitute a breach of Article 2, the BOR 2 risk claim failed.

16.As far as the persecution risk is concerned, the adjudicator considered the applicant’s evidence and his interpretation of what must be proved before an applicant can invoke protection under Article 33 of the Refugee Convention.  He set out his reasons why he found the applicant cannot successfully establish a claim under this ground.  In any event, he finds State protection available and internal relocation a viable option.  The adjudicator confirmed the decision of the Director.

17.Then, the adjudicator went on to find that the applicant was also not a credible witness but stressed this was an independent and separate issue to his analysis of the evidence to which he applied the law and legal principles for the applicable grounds.  He goes on to give his reasons why he found the applicant was not credible.

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.  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.  There was no complaint made to the adjudicator concerning the performance of the lawyer assigned.  For 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 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 consider up-to-date, relevant and internationally recognised information.  The Director expressly considered objective information which the adjudicator noted and adopted.  These grounds are not reasonably arguable.

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

22.The applicant made a complaint during the hearing that he was not allowed to give evidence at the appeal and give detailed answers.  He went as far as to say he was only allowed to answer questions with either a yes or a no or a don’t know.  This is a serious allegation and complaint so I called for a copy of the audio recording of the appeal hearing and this was not the case. There were two instances where he did not directly answer the adjudicator’s question and was asked to answer in that manner.  This would explain why he has made this submission.  I am satisfied that he was not limited to only yes or no answers.  There was no procedural unfairness during the appeal hearing that would merit leave.

23.There is a complaint the Director did not screen the BOR 2 risk before it was dealt with by the TCAB but clearly this allegation is incorrect when the Director’s decision rejecting the BOR 2 risk is dated 9 February 2017 and the appeal hearing dealing with the appeal including the BOR 2 risk claim was 24 March 2017; after the Director’s decision.

24.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.

25.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 2^nd day of March 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