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

HCAL614/2017
[2018] HKCFI 419

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 614 of 2017

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by The Honourable Mrs Justice Campbell‑Moffat:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Procedural history

1.The applicant entered Hong Kong illegally on 2 June 2008.  He was arrested on 18 June 2009, for illegally remaining.  He submitted a torture claim by written representation on 21 June 2009 and was released on recognisance on 8 July 2009.  He submitted his non-refoulement claim form on 20 August 2014.  Screening interviews were conducted by the Director of Immigration (“the Director”) on 25 November 2014, 29 January 2015, and 25 February 2015. His application was refused by way of Notice of Decision (“the Decision”) on 17 June 2015. There was a Notice of Further Decision on 31 October 2016 in respect of BOR 2, which was assessed by the Director without benefit of further submissions by the Applicant as the Applicant had been given an opportunity to provide further submissions but had not availed himself of that opportunity.

2.The Applicant appealed the Decision to the Torture Claims Appeal Board (“TCAB”) on 29 June 2015.  The Adjudicator of the TCAB heard him on 18 January 2017.  The Adjudicator refused his appeal on 1 September 2017.  The Applicant submitted a Form 86 seeking leave to apply for judicial review by way of oral hearing on 12 September 2017.  He was informed of the hearing date by ordinary and registered post to the address on his Form 86, on 1 December 2017.  The registered post was returned to the High Court on 29 December 2017.  By reason of his failure to attend on 2 February 2018, and according him the highest standard of fairness, I have nevertheless considered in full the papers submitted to the court including the Applicant’s Grounds of Review.

Background

3.The applicant is a Bangladeshi national born on 6 April 1978.  His home is in Permothrapur, Jhenaidah, Bangladesh.  He joined the Bangladesh Nationalist Party (“BNP”) in 1999.  Shortly after the 2001 elections, the Applicant witnessed an attack by a school friend on a BNP member.  The school friend and the other assailants were members of the Awami League (“AL”).  The Applicant acted as a witness in subsequent court proceedings and was threatened by the attacker and other members of the AL in an attempt to stop him giving evidence.  These threats were reported to the police.  Despite the threats, the Applicant attended court on several occasions and came to no harm.  Subsequent to this, one of the two protagonists in the attack was seriously injured.  Later, in reprisal, the opposing protagonist was killed.  The Applicant was not involved in these attacks.  Further threats were made to the Applicant, which were reported to the police.  They did nothing as, according to the Applicant, they had been bribed.  In 2001 and 2003, as a result of the conflict between these two groups of villagers, there were two false allegations made to the police against the Applicant.  On both occasions he could prove he was elsewhere.  In 2006, the Applicant went to Dhaka.  His residence in Dhaka was known to the AL protagonist, so he left for Hong Kong but returned shortly afterwards to Bangladesh and remained in his home village between 2006 and 2008.  During this period there were verbal threats but no actual assault.  In February 2008, the Applicant left once again for Dhaka and then left Bangladesh for Hong Kong on his own passport.

4.The Applicant fears for his life if he were to be returned to Bangladesh.

The non-refoulement claim

5.Under the Unified Screening Mechanism (“USM”), the Applicant’s claim was assessed on all applicable grounds which are:

i.   risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”);

ii.   risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”);

iii.   risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”); and

iv.   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 of the ICCPR (“BOR 2 risk”).

Decision and further decision of the Director

6.The Director analysed the Applicant’s claim on all applicable grounds.  He correctly set out the law and key legal principles. There were no substantial grounds for believing the Applicant would be subjected to torture, ill-treatment or persecution if returned to Bangladesh.

7.He assessed the level of risk of harm upon return to be low.  He found that to be so, based upon the fact that no harm had ever befallen the Applicant previously despite the threats by AL members.  That low level of risk was reduced or negated by the state protection available.  This assessment was made taking into account all of the COI information even though the Director accepted that violence against opposition party members was apparent and that police and security forces were the subject of criticism especially of corruption.  However, that was to be considered against the context of the steps taken by the Bangladeshi government to curb corruption and improve police professionalism.  He took into consideration the fact that the Applicant had spent some time in custody without harm and that he was ultimately released on bail.  As for any persecution risk, the Director found the dispute to be a private one.  The Applicant had failed to show there was a well-founded fear of persecution arising out of the Applicant’s political opinions.

8.The Director further found that internal relocation alternatives were reasonably available to the Applicant given the size and population of Bangladesh; the Applicant’s previous relocation to Dhaka; his age and his educational qualifications.

Decision of the adjudicator

9.The Adjudicator analysed the Applicant’s claim on all applicable grounds.  He correctly set out the law and key legal principles and applied those to the facts as he found them to be.  He found no evidence of ill-treatment by the police, no evidence of physical or mental harm, nor assault by members of the AL.  Any harassment there was, was carried out as a result of a private feud between the parties and not by state actors.  Thereafter, the Applicant did not report the matter to the police or other authorities.  If he had done so, the Adjudicator was satisfied from the available COI information, that the Bangladesh government was in a position to provide reasonable protection to its citizens.

Judicial review

10.The burden of proof in judicial review is upon the claimant on the civil standard.  For the purposes of an application for leave the test is one of whether the grounds show an arguable case.  This application is in respect of the Decision of the TCAB only but out of an abundance of fairness and because the applicant failed to attend, I have considered both the determinations of the Director and of the Adjudicator.  There were eight grounds of review.  I understand them to be:

i.   The Adjudicator failed to carry out sufficient COI research, which was procedurally unfair.

ii.   The Adjudicator unreasonably failed to take into account any COI research and failed to give it appropriate weight whilst cherry picking such information and placing weight on COI information of little or no relevance, which was out of date.

iii.   The Adjudicator unreasonably failed to make a finding as to whether there is a consistent pattern of gross, flagrant or mass violations of human rights as mandated under Article 3(2) of CAT.

iv.   The Adjudicator misdirected herself as to the principle of the extended meaning of state protection and thereafter failed to assess whether the state had exercised due diligence or sufficient due diligence.

v.   The Adjudicator unreasonably took into account irrelevant and incorrect considerations not reasonably inferred from the facts and failed to take into account facts and inferences favourable to the Applicant.

vi.   The Adjudicator failed to call for psychiatric or psychological evaluations.

vii.   The adjudicator failed to apply the correct standard of proof.

viii.   Failure by DLS resulted in lack of /insufficient legal representation which resulted in unfair procedure.

11.These grounds were not subsequently expanded upon or supported on the papers.  It is therefore difficult to assess the basis of the complaint.

12.As to items i and ii above, the Adjudicator had available to him all of the materials relied upon by the Director and both made reference to the COI information.  The Adjudicator in particular, made reference to a considerable number of common law authorities upon all aspects of the issues he was determining.  Without identifying other information, which should have been relied upon and was not, I cannot see any fault with the reasoning of either the Director or the Adjudicator.

13.As to item iii, the Director and the Adjudicator found that this was a wholly private dispute arising within the confines of two opposition groups within a single village and with no improper state intervention.  Nor had the Applicant established any kind of physical or mental harm which it was incumbent upon him to do upon a balance of probabilities.  Given that finding of fact, it was not incumbent upon the Adjudicator to consider human rights issues elsewhere in Bangladesh.  That is a consideration which is mandated under Article 3(2) “where applicable”.

14.As to item iv, the Director and the Adjudicator took into consideration all relevant facts put forward by the Applicant including the approach taken by the local police force, which appeared to be acting entirely appropriately toward the Applicant when they released him on bail after investigation.

15.As to item v, there is nothing within the papers submitted or grounds of review which indicates either the Director or the Adjudicator unreasonably failed to take into account relevant facts for or against the applicant or drew inferences incorrectly from those facts.

16.As to item vi, there is no requirement for the Director or the Adjudicator to call for psychiatric or psychological reports in the absence of evidence to indicate that the applicant was physically or mentally harmed.  The onus is on the applicant to adduce all necessary documentation to support his claim.  A psychiatric or psychological report could have been obtained by the Applicant. There is no suggestion within the papers that the applicant asked for such an action to be taken.  Given that this was not asked for, the Director and the Adjudicator cannot be said to have acted unreasonably in failing to require such a report in the absence of evidence indicating that one was necessary.

17.As to item vii, both the Director and the Adjudicator considered the application on the civil standard.  The burden being upon the applicant to establish his claim under one or more heads on a balance of probabilities.

18.As to item viii, this is a claim against the Duty Lawyer Service for a lack of legal representation or insufficient representation.  The applicant was legally represented at both hearings.  There is no basis within the grounds advanced to consider an argument that the representation with which he was provided, resulted in any procedural irregularity.

19.The remainder of the affidavit of the Applicant was a complaint about delay in receipt of papers and difficulty with translation which led to confusion on the part of Applicant before the TCAB.  Nevertheless, he maintained that he was asked and answered all questions put to him.  He does not suggest that he was denied an opportunity to advance argument nor that those arguments were rejected without consideration.  Thereafter, he complained that the available COI was out‑of‑date but did not indicate which further and up‑to‑date COI should have been relied upon.  Lastly, he complained that he had not been screened in respect of the Director’s decision under BOR 2.  This had not been done as he had not responded to requests from the Director for further submissions under BOR 2 as evidenced by the letter of the Director of 13 September 2016 and Notice of Further Decision dated 31 October 2016.  The Applicant cannot complain if he does not respond to requests for information and make himself available to argue his case.  It is incumbent upon the Applicant to ensure that he is in communication with the Director and appropriate authorities at all times so as to be able to react timeously to any requests made of him.  His failure to attend the hearing of 2 February 2018 is an example of this unfortunate attitude.

Conclusion

20.I have not found any error of law or procedure.  The Director and Adjudicator considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

21.In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore 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