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

HCAL396/2017

[2018] HKCFI 408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 396 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 arrived in Hong Kong illegally by boat on 11 January 2015 before surrendering himself to the Immigration Department on 9 February 2015. Three months later he lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 21 January 2016 and 20 June 2017.

2.He lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which was rejected on 23 June 2017.  He filed a notice of application for leave to apply for judicial review on 13 July 2017 and requested an oral hearing which was set down on 5 December 2017.  The applicant appeared in person having had his application for legal aid refused.

3.The basis of the applicant’s claim was that if he returned to Bangladesh he would be harmed by the Awami League (“AL”) because he was a member of the Jamaat-e-Islami Party (“JI”).  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 summarise it here.

4.The AL won the election in December 2008 and organised a large-scale victory rally for 1 January 2009.  That morning many AL supporters banged on the applicant’s door to take revenge for the applicant participating in JI rallies prior to the election.  They forced their way into the applicant’s house but he was not home; they told his family they would kill him when they found him.  No one was harmed but they were abused verbally.  His family telephoned the applicant and told him not to come home.

5.The applicant immediately moved to Dhaka where he was not known politically to avoid trouble and harm.  He stayed there living peacefully and ran a shop from 2009 to 2013.  His party worked under the leadership of the Bangladeshi Nationalist Party and boycotted the next election in January 2014; the applicant actively participated in the boycott program in the Tribeni area.  The AL party won again and then they started to take revenge on supporters of the opposition party.

6.On 6 January 2014 some AL members went to the applicant’s shop and asked his employee to tell the applicant to see the AL leader within 24 hours.  The applicant did not report this incident to the police because the police were the enemy of the opposition party and were told to arrest JI supporters.  After this incident, the applicant laid low and seldom went out.

7.One month later, the applicant was seen and abducted by AL members; they took him to their office.  They called his family and his brother came to negotiate his release. The applicant promised to seize all political activity of the JI in the future and he was released later that day. He was not physically harmed or hurt.  He said he was verbally threatened. He lived in fear of being kidnapped by AL members as dead bodies of JI members were often found and JI members were arbitrarily arrested frequently.  He then went to live with his sister and stayed in another place for a total of 10 months whilst preparing to leave Bangladesh because he felt his life was in danger.

8.He left Bangladesh on 8 January 2015 and had no problem passing through Immigration.  When he boarded his flight he received a phone call from a member of the AL who told him that they knew he was leaving the country and that when he returned they will get hold of him.  He arrived in China but did not seek political asylum because he felt there was no opportunity there so arranged to sneak into Hong Kong by boat.

9.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”).

10.The adjudicator treated the appeal as a rehearing. He arranged an oral hearing and the applicant elected to answer questions.  The adjudicator has set out the law and key legal principles in his decision.  He has set out a summary of the Country of Origin (“COI”) information he referred to.  He has noted and therefore I assume adopted Part A of the Director’s decision which is an objective and detailed analysis of COI information.  He, like the Director, found State protection available to the applicant as well as internal relocation a viable option if there was a risk.

11.The adjudicator found on the applicant’s own facts that he suffered no physical injury and has never been physically assaulted.  He alleges mental torture after his capture but notes there is no evidence of any psychiatric or psychological illness resulting from this incident. Moreover, the applicant has been able to carry on with his daily life for over 10 months and arranged to leave Bangladesh and travel to Hong Kong.  The adjudicator finds what he has suffered falls well short of severe pain and mental suffering required to be defined as torture.

12.On the applicant’s own facts, he never had direct confrontation with any AL members before leaving his wife and family and moving to Dhaka where he remained for four years.  He had no direct confrontation when they allegedly entered his shop in January 2014.  These incidents were relayed to him by others.  When he was taken to the AL office he was not physically harmed before he was released.  The adjudicator found he had suffered no severe pain or suffering that could amount to torture or even reach a minimum level of severity required; meaning actual bodily injury or intense physical or mental suffering.

13.The adjudicator applied the definition of torture set out in section 37U(1) of the Immigration Ordinance and considered the torture risk claim.  There was no evidence at all of anyone intentionally inflicting severe pain or suffering whether physical or mental on the applicant for such purposes as described in that section and no pain or suffering was inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.  His torture risk claim failed.

14.The adjudicator considered what was required to invoke the protection of Article 3 and found the applicant had failed to establish that he had a genuine and substantial risk of facing any ill-treatment which will attain a minimum level of severity in the future.  The BOR 3 risk claim failed.  He considered the BOR 2 risk and found it did not apply here nor was it part of the applicant’s case or claim.  The BOR 2 risk claim failed.

15.The adjudicator considered whether the applicant was at risk of persecution if refouled to Bangladesh.  He found he was not for several reasons, including, if there was a risk, it was not from State actors which meant because he found State protection available as well as internal relocation a viable option then a claim under the persecution risk would fail.  The adjudicator confirmed the decision of the Director.

16.The adjudicator also set out the applicant’s responses to his questions and responses to the COI information and found his responses illogical.  For example, the applicant did not think relocating from his village was an option because the whole AL party was after him which consisted of thousands ( probably more like millions) of people.  When asked how they would recognise him, he said it was because JI people looks different and the AL was there to kill every JI member.  The adjudicator also set out issues concerning credibility such as why the applicant did not lodge a claim when he immediately arrived in Hong Kong or in the Mainland.  The adjudicator considered credibility as a separate issue.

Leave to apply for judicial review

17.The applicant seeks leave to judicial review the Director’s Notice of Further Decision dated 20 June 2017 dismissing his BOR 2 risk claim and the TCAB decision dismissing his appeal on all grounds dated 23 June 2017.

18.The applicant submits he did not receive the Director’s letter dated 1 June 2017 prior to his dismissal of 20 June 2017 inviting him to submit further information to support a BOR 2 risk claim within a period of 14 days.  He also did not receive the second letter of 20 June 2017.  If he had, he would have known that the Director informed him in the letter that he had forwarded a copy of that letter to the TCAB as his appeal was still pending determination for its consideration as part of the appeal process at the same time.  That was why the TCAB also considered the applicant’s BOR 2 risk claim as well in its determination dated 23 June 2017.

19.It was a ground of the applicant’s application that he was not given an opportunity by the Director to submit additional information to support a BOR 2 claim because he did not receive the Director’s letter and he was not given an opportunity by the adjudicator to provide additional facts without an additional hearing.

20.There is no merit in the ground that there was procedural impropriety or unfairness by the Director because the applicant admitted during the oral hearing before this court that he moved addresses in March 2017 without informing the Immigration Department which would explain why he did not receive their letters dated 1^st and 20^th of June 2017.  In any event, the applicant admitted he would have had no additional information to submit to support a BOR 2 claim that would have established there was a personal and real risk of his absolute and non-derogable right, including his right to life under BOR 2 being violated.  He would only have reiterated that he will be tortured by the political leader if he returned to Bangladesh.

21.The adjudicator makes no mention of the fact he received the Director’s Notice of Further Decision dated 20 June 2017 after the appeal oral hearing but before the date of determination.  He makes no mention of his decision not to conduct a second oral appeal hearing.  Clearly the fact the applicant did not submit any further and additional information would mean there would be no need to do this but it would be best as well as fair to the applicant to explain in writing why there will be no further hearing.  However, this omission is not material.  There is no merit in this ground.  There would have been no necessity to conduct a second oral hearing.

22.In the applicant’s affirmation there are other grounds he relies on; he submits the adjudicator failed to carry out sufficient research into the COI conditions, failed to appreciate the serious level of police corruption and failed to consider human rights abuses as well as the abuses against JI members.  I am satisfied the adjudicator did research and reached reasonable conclusions as to the availability of State protection.  The applicant never made any police reports and cannot rely on the extended concept of State acquiescence.  This is not a case where State authorities or others acting in an official capacity failed to exercise due diligence to protect the applicant.

23.In paragraph 16 of the applicant’s affirmation it seems to suggest he has been tortured physically by the police, suffered some injuries and required stitches.  In paragraph 17 it says his opponent has attacked his home and shot his brother.  After this his family have approached the police but the police did not investigate this honestly.  But these are facts that were not put forward as part of the applicant’s case before the Director or the adjudicator, they seem to be new facts.  They are not facts I will take into account.  In paragraph 18, the applicant suggests if he is returned to Bangladesh he will face false allegations and the death penalty or life sentence for supporting the JI and being a member of the JI.  Again these were not put forward as part of the applicant’s case before the Director or the adjudicator.

24.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I see no fault in the adjudicator’s decision.  I see no fault in how the Director dealt with the BOR 2 risk claim.  The applicant’s complaints against them and the procedure undertaken are not made out.

25.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 5^th 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