Re Aa

HCAL 268/2017
[2018] HKCFI 365

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 268 OF 2017

________________________

________________________

Before: Hon Wong J in Court

Date of Hearing: 14 February 2018

Date of Decision: 6 March 2018

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JUDGMENT

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1.This is an ex-parte application by the Applicant for leave to apply for judicial review of the decision of the Deputy Chairperson of the Torture Claims Appeal Board / Adjudicator of the non-refoulement Claims Petition Office (“the Deputy Chairperson)[1] dismissing his appeal of the Director’s decision, with the Director of Immigration as the Interested Person.

Background

2.The Applicant is a Bangladesh national. 

3.On 13 July 2014 he departed Bangladesh and arrived in Guangzhou, China, on the same day.  He then went to Shenzhen and from there sneaked into Hong Kong by boat on 15 July 2014.

4.He was arrested by the police on the same day and was referred to the Immigration Department for investigation.  He lodged a claim for non-refoulement on 17 July 2014.

5.His claim was considered by the Director on the following grounds:

(1) risk of torture under Articles 1 and 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) (“torture risk”);

(2) risk of being subjected to torture or to cruel, inhuman or degrading treatment or punishment (“CIDTP”) contrary to Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR3 risk”);

(3) risk of loss of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance[2] (BOR2 risk); and

(4) 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”).

By Notices of Decision dated 1 June 2016 and 23 March 2017, the Director rejected the claim.

6.The Applicant lodged an appeal / petition (“appeal”) against the decision of the Director.  There was an oral hearing for this purpose.  By the Decision dated 18 May 2017, the Deputy Chairperson rejected the Applicant’s appeal.

7.On 6 June 2017, the Applicant filed an application for leave to apply for judicial review against the decision of the Deputy Chairperson.

Relief Sought

8.The Applicant seeks the following relief:

(1) an order certiorari to bring up and quash the said decision of the Deputy Chairperson;

(2) an extension of time under Order 53, rule 4(1) within which to make this application;

(3) an order under Order 53, rule 9(4) to remit the Applicant’s claim to the Torture Claims Appeal Board for an oral hearing before a different Board member;

(4) an oral hearing if leave is not granted on paper (and thus this hearing);

(5) such further or other relief as the court may provide; and

(6) an order for costs and the Applicant’s own costs be taxed pursuant to Legal Aid Regulations.

Grounds of review

9.The Applicant appeared in person.  The grounds of review he put forward may be summarised as follows:

(1) procedural impropriety / unfairness: failure to carry out sufficient research and inquiry into relevant and up to date COI relevant to the circumstances of the Applicant;

(2) irrationality: failure to take into account and give sufficient weight on relevant COI and cherry picking of information in the exercise, resulting in a decision not reasonable in the Wednesbury sense;

(3) irrationality: failure to evaluate and make a finding as to whether there exists in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights;

(4) irrationality: failure to analyse and assess whether state protection exists in Bangladesh under the extended meaning of State acquiescence and the Deputy Chairperson had misdirected himself on the concept of State acquiescence;

(5) irrationality: making unreasonable inference as a result of putting undue weight on incorrect information and failure to make inferences that were favourable to the Applicant, resulting in an unreasonable decision in dismissing his appeal;

(6) procedural impropriety: failure to call for psychological and psychiatric evaluations and reports;

(7) procedural impropriety / unfairness: applying the incorrect standard of proof; and

(8) procedural impropriety / unfairness: failure to assign a duty lawyer at first instance resulting in a lack of and / or insufficient legal representation for the Applicant, as a result he was not afforded a fair procedure.

Factual basis for the non-refoulement claim

10.The Applicant based his claim on 4 incidents.

11.The Applicant was married and has two sons aged 10 and 6 respectively.  He had been running his father’s grocery shop between 1995 and 1997 until the shop was vandalised by some unknown people from the Awami League (“AL”).  Then he worked as a cleaner in a garment factory in Dhaka before working as a construction worker in Dubai.

12.The Applicant’s family had all along been supporters of Bangladesh Nationalist Party (“BNP”).  He himself joined BNP in 1995 and had been an active member.

13.His uncle, Baki, held important position in BNP before he passed away in 2013.

14.The 1^st incident took place in April 1998.  AL members attempted to seize the polling box at a voting centre for the election of Union Council members, resulting in a fight between members of BNP and AL.  AL members were carrying bamboo sticks, knives, and other sharp objects.  The Applicant was punched in his limbs and shoulders, and his hair was pulled.  He sustained very minor injuries and managed to flee.  The fight stopped when police intervened.  Many people sustained injuries.  Baki, the Applicant and many BNP members were falsely alleged by AL members to have attempted to capture the voting centre.

15.For fear of arrest, the Applicant went to stay in his sister’s place in Nabinagar Kosba.  He was told that the police were looking for him and had frequently visited his home.

16.Eventually, Baki, the Applicant and someone else were charged for attempting to capture the voting centre.  When he attended court, he was granted bail.

17.He then went to Dubai not only to work but also to avoid perceived danger at home.

18.In 2005, Baki told him that the charge had been dropped after a settlement between BNP and AL.

19.In March 2013, he returned to Bangladesh despite the risk as his father was very ill.

20.Then came the 2^nd incident which took place in April 2013.  The Applicant was asked to go to a tea stall where a fight between members of BNP and AL was going on.  Baki was involved.  Despite the Applicant said when he arrived the fight had already stopped and the AL members had left, he also said he had sustained injuries which took him 2 – 3 months to recover.

21.The 3^rd incident took place on the following day.  The Applicant was attacked by some AL people armed with batons who accused him of beating up the father of one of them.  He was cut, punched and kicked.  Bricks were also thrown at him.  Suddenly a senior AL leader arrived and said the Applicant had committed no offence.  He was then let go.  As he was injured and hospitalised for 5 days, someone else reported the incident to the police but the police did nothing.

22.After he had been discharged from the hospital, the Applicant went to visit his family.  When he was leaving home, he was approached by the same group and he managed to escape.

23.The 4^th incident took place a few days later when the same group came to his home.  They did not know the Applicant was there and told the latter’s father that they would kill him if they were to see him again.

24.Fearing of his safety, the Applicant moved to live with his sister again.  He did not report the threat as the authorities in Bangladesh were all controlled by the ruling party AL.

25.In June 2013, he decided to flee to Hong Kong to seek protection.  He moved to Dhaka to make arrangement.

26.He was told that some members of his family had been arrested and detained by the police for 15 days in 2014.

27.On 13 July 2014, he left the country for Guangzhou and eventually arrived in Hong Kong.

Information disclosed during the application process

28.When the Applicant was staying in Dhaka, some of his family members including his parents and wife were detained for 15 days and beaten up by the police because of their support to BNP.  It was only after paying of bribe by him to the police that they were released.[3]

29.The Applicant stressed that relocation is not feasible even though his stay outside his home town was trouble free as AL members could locate him as AL is the ruling party and has the resource and connection throughout the country.  It has substantial influence over the police as well.  He would be killed if found.[4]

Hearing of the application

30.For the purpose of this application, the Applicant relied on an affirmation which he filed.  At the hearing, he re-iterated that the difficult situations as mentioned in his papers are still continuing as AL is still in power and he was told that leaders of the group to which he had political association have been put in jail. 

Discussion and consideration

31.Judicial review is not a further or alternative appeal procedure.  The court in judicial review is only to look at the legality of the underlying decision but not its merits.  In exercising this supervisory jurisdiction, as Lam J (as Lam VP then was) said in TK v Director of Immigration[5], the crucial issues are :

(1) whether the adjudicator committed any error of law in his decision;

(2) whether the procedures adopted at the hearing of the petition satisfied the high standard of fairness; and

(3) whether the substantive decision satisfied the enhanced Wednesbury test.

32.The enhanced Wednesbury test is an application of the Wednesbury test by means of a rigorous examination and anxious scrutiny of the decision-making process and the reasons by which the decision-maker reached his decision: Prabakar[6] and AM v Director of Immigration[7].

33.It was confirmed by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[8] that the test in deciding whether leave to apply for judicial review should be granted is whether the Applicant’s case is reasonably arguable, in other words, whether it enjoys realistic prospect of success.

34.Grounds 1 and 2 advanced by the Applicant concern assessment by the Respondents of COI.  The Applicant criticised that the Deputy Chairperson failed to take into account and give any weight on the highly relevant COI cited in the Director’s Decision.  He also criticised the Deputy Chairperson for having cherry picked information in COI and in any case the COI he cited was outdated.  He said he is not convinced by the COI which reports improvement in efficiency and effectiveness of the Bangladeshi Police Force.  Purported improvements were only propaganda never put in practice.  He also said he does not have confidence in the measures taken by the government in containing corruption.  He does not believe fair trial would be held in Bangladesh.  There was no way for him to seek assistance from the police as they were under full control of the ruling party AL.

35.I have perused the Decision of the Deputy Chairperson in particular the COI which he has taken into consideration.  There is nothing to show that the COI information and materials considered by him were something beyond the reasonable scope of material which he was expected to take into account.  The complaint about outdated COI cannot be made out as most of the COI taken into account by the Deputy Chairperson were published in 2017.  It may be the case that the COI considered by the Deputy Chairperson and the Director were not the same.  It cannot be a reason for complaint.  The Deputy Chairperson was under a duty of rehearing.  I cannot agree that there had been insufficient research or inquiry into relevant and up to date COI.  The information which the Deputy Chairperson quoted in his Decision was what he was entitled to take into account.  It cannot be said to be cherry picking of information.  I do not find his consideration unbalanced.  Nor do I find his decision unreasonable in the Wednesbury sense.

36.By Ground 3, the Applicant criticised that the Deputy Chairperson failed to evaluate and failed to make a finding as to whether there exists in Bangladesh a consistent pattern of gross, flagrant or mass violation of human rights, as he was required to do pursuant to Article 3(2) of CAT.  Hence it was said his decision is also unreasonable.

37.As stipulated in Article 3 of the Convention Against Torture, in consideration of a torture claim, whether there exists a consistent pattern of gross, flagrant or mass violations of human rights are amongst the matters which shall be taken into account in determining whether there are substantial grounds for believing that the claimant would be in danger of being subjected to torture.

38.Whilst the matter said in the preceding paragraph shall be taken into account, the primary question for the Deputy Chairperson was whether there were substantial grounds for believing that the Applicant would be in danger of being subjected to torture so that he should not be expelled, returned or extradited.[9]

39.In my judgment, the Deputy Chairperson had made due and adequate assessment on the evidence before he made the finding that there were no substantial grounds for believing that the Applicant would be in danger of being subjected to torture.

40.Ground 4 relates to State acquiescence.  It is clear from the finding of the Deputy Chairperson that he did not consider there was State acquiescence in the present case.  Although he did not expressly say he did consider State acquiescence in the extended form, his extensive consideration of the COIs which are relevant in this matter is clear indication he did consider the issue.  I do not find the Deputy Chairperson had misdirected himself on the matter.

41.Ground 5 focuses on the factual findings of the Deputy Chairperson.  Not only that I do not agree on the observation made by the Applicant, what the Applicant said in relation to this ground is to effectively ask the court to rehear the merits of the claim which is not the function of the court in judicial review.

42.By Ground 6, the Applicant criticised the Deputy Chairperson for failing to call for psychological and / or psychiatric reports.  From what the Applicant had disclosed in the process of application, there was no indication that such report(s) would have been needed in the consideration.

43.Ground 7 relates to the standard of proof.  The Deputy Chairperson is very experienced in matters of this nature, there is no reason to suspect that he is not aware of the proper standard of proof.  More importantly, I can find nothing in his Decision which indicates to the slightest extent the possibility of wrong application of standard of proof.

44.By Ground 8 the Applicant criticised the Deputy Chairperson for failing to assign a duty lawyer.  The Deputy Chairperson does not have such duty.  Every claimant for non-refoulement is routinely provided with information including access to have a duty lawyer and it is up to him to make the necessary arrangement to approach the Duty Lawyer scheme for assignment of legal representation.

45.In relation to the Applicant’s submission on internal relocation, my observation is that the Deputy Chairperson did not dismiss his appeal by reason of possibility of internal relocation despite his judgment that relocation would have been possible.

46.I have considered the Decision of the Deputy Chairperson.  In my judgment, none of the allegations or criticism put forward by the Applicant is substantiated in the sense that there is realistic prospect of success.

Conclusion

47.The Applicant has not satisfied me that there is a ground based on which there is realistic prospect of success to apply for judicial review against the decisions of the Deputy Chairperson.  In the circumstances, neither extension of time nor leave to apply for judicial review is granted.

The Applicant appeared in person