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

HCAL441/2017

[2018] HKCFI 410

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 441 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 19 July 2014 by boat only to be arrested on the following day by the police.  He lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 9 August 2016 and 29 May 2017.  He lodged a petition/appeal with the Torture Claims Appeal Board (“TCAB”) which was rejected on 7 July 2017.  He filed a notice of application for leave to apply for judicial review on 25 July 2017 and requested an oral hearing which was set down on 17 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 refouled to Bangladesh he would be harmed or even killed by members of the Awami League (“AL”) because he was a supporter of the Juba Dal (“JD”), the youth wing of the Bangladesh Nationalist Party (“BNP”) and assisted them in the national election in 2014.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in full and in detail in their decisions therefore, I only intend summarise it here.

3.The applicant was born in 1977 in Mushiganj, Bangladesh, received little education, is married with two children and worked in a shop for years before he came to Hong Kong.  He joined JD in early 2009 and actively participated in rallying support for BNP candidates just before the national election in January 2014.  A couple of days before the election, he and others met whilst out rallying and were threatened by 20-odd AL members with hockey sticks.  They threatened to break their legs and kill them if they continue to canvas votes for BNP candidates in that area.  They ran at the applicant and his group who all ran away; no one was hurt nor did anyone report it to the police.  After the AL victory, the applicant hid at a friend’s home for a few days before returning home.

4.When he returned home, seven or eight AL members went to his home but he was out.  They told his wife they were going to kill him because he campaigned for the BNP.  He immediately went to stay with his friend and then uncle in Dhaka.  The AL members continued to harass his family every three to four days looking for him.  He did not return home.  It was pointless to report this to the police because the AL were the ruling party and they would take no action.  After about seven months of hiding in Dhaka the applicant decided to go to China and left Bangladesh on 18 July 2014.

5.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”).

6.The adjudicator treated the appeal as a rehearing. He correctly set out the law and the key legal principles for all four applicable grounds.  He set out the applicant’s claim, evidence and applied it to the four grounds.

7.As far as the torture risk is concerned, he considered the definition of torture set out in section 37U(1) of the Immigration Ordinance and applied the applicant’s evidence to it.  On the applicant’s own evidence, he was not the target of the first incident when he and others ran away from a group of AL members.  He was not home during the second incident when AL members threatened him through his wife.  Immediately after that, he fled to Dhaka where he lived for months without harassment before leaving Bangladesh.  The applicant had never suffered any injury that amounted to torture; be it physically or mentally.  He had never been confronted face-to-face by any AL member.

8.There was no evidence that establish substantial grounds to show he faced a foreseeable and real risk of torture in the future.  There was no evidence of any act being 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.  He was not a target of the State.  It was not part of his case that there was extended State acquiescence or passive acquiescence.

9.The adjudicator found from Country of Origin (“COI”) material that the effectiveness and conduct of the police varied in Bangladesh but that there were measures in place to improve the corruption of the police.  He found there to be State protection available if the applicant was refouled to Bangladesh.  He found the torture risk claim failed.

10.As far as the BOR 3 risk claim was concerned, he considered what the applicant had to establish to invoke the protection of BOR 3.  The applicant had not suffered any severe injury or serious harm; he had not reach the minimum level of severity required.  He had not established that he faced a genuine and substantial risk of being subjected to such ill-treatment, torture or CIDTP if he returned home.  The BOR 3 risk claim failed.  The adjudicator considered Article 2 and the BOR 2 risk and found the applicant had not established he was at risk of a violation of his right to life that would constitute a breach of Article 2; therefore, the BOR 2 risk claim failed.

11.The adjudicator considered the persecution risk and found he had not suffered any injury or serious harm before he left Bangladesh.  He also found that the applicant could get reasonable protection from the State; this means the applicant cannot or does not show he is unable or unwilling to because of his fear, avail himself of State protection in Bangladesh.  This would mean that the persecution risk claim failed.  The adjudicator confirmed the decision of the Director.

12.The adjudicator went on also to consider the possibility of internal relocation and found it a viable option without undue hardship.  As an afterthought, he also considered separately and independently to his analysis above, the question of the applicant’s credibility.  He found reasons to doubt the applicant’s credibility and set them out in his decision.  He goes on to say that on credibility, the applicant would not successfully establish a claim on any applicable ground either.

Leave to apply for judicial review

13.The applicant seeks to judicial review the decision of the Director as well as 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 rehearing.  Therefore, there is no room or reason for a judicial review of the Director’s decision that I can see here.  I have considered the applicant’s grounds of his application against the decision of the TCAB only.

14.In ground 1, he submits both decision-makers failed to sufficiently enquire into the COI conditions of Bangladesh.  Specifically, the adjudicator did not provide a list of the material he relied on and referred to.  However, the adjudicator did make mention of the pages of the hearing bundle he was relying on albeit without reference to the title of the publication or article.  He did not set out any objective information or quote from objective information which led to his comment that I quote, “the effectiveness and conduct of the police vary in Bangladesh”, para 27(a).  He could have expanded on this.  Despite this, this ground is not reasonably arguable which is what is required in such an application.

15.In ground 3, the applicant accuses the decision-makers of illegality; failing to take into account relevant considerations.  I am unable to properly decipher which or what constitutes illegality.  The facts he refers to were mentioned and considered by the adjudicator.  I see no merit in this ground.

16.I am not satisfied the applicant has showed any error of law by the adjudicator.  There is 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.  None of the grounds were reasonably arguable and 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