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

HCAL422/2017

[2018] HKCFI 651

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 422 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 entered Hong Kong illegally and was arrested on 3 June 2012.  He lodged a torture claim on 5 June 2012 which was rejected by the Director of Immigration (“the Director”) on 8 November 2012.  The Director then assessed his claim for non-refoulement protection on applicable grounds other than the risk of torture and rejected it on 19 July 2016 and 10 May 2017.  The applicant then lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 23 June 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 18 July 2017.

2.The basis of the applicant’s claim was that if he returned to Bangladesh he would be harmed or killed by his previous employer and arrested by the police due to his involvement in an explosion of the boiler in his workplace/factory which caused damage and casualties.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in detail in their decisions therefore, I only intend to summarise it here.

3.The applicant was born in Bangladesh in 1985, had a few years of education before he became an apprentice mechanic.  In September 2010 he worked as a maintenance mechanic in a clothing factory.  In 2011 a boiler that he was in charge of exploded and the factory caught fire.  People died, were injured and the building damaged.  The applicant fled the scene.  His employer blamed the applicant and bought court proceedings against him for negligence.  The police wanted to interview the applicant.  He fled from his home and moved around Bangladesh.

4.He was once beaten up by his employer’s men; he was punched, stamped on and cut with a razor blade. He was hospitalised for a week.  His parents tried to negotiate a settlement with the police and his employer but to no avail.  His employer was a member of the Awami League which was in power and therefore he was very influential.  His father then advised the applicant to leave Bangladesh so he flew to Thailand on 15 February 2012 before flying to Mainland China and remained there until 3 March 2012.  He then sneaked into Hong Kong.  His family have told him that the police and his ex-employer are regularly searching for him to date.

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/petition as a rehearing and conducted an oral hearing.  He set out the applicant’s complicated Immigration and claim history in detail in his decision and made it very clear that he was assessing the applicant’s appeal/petition on the above four applicable grounds.  He made the applicant aware that he was assessing him on those four grounds including a BOR 2 risk.

7.The adjudicator correctly set out the law and key legal principles applicable to those four grounds.  He set out the applicant’s claim and evidence as well as his answers to the many questions the adjudicator had in relation to his evidence, particularly the boiler explosion and the consequences of it.  It would appear that not only was his evidence vague in this respect but there were material inconsistencies that undermined the credibility of his claim.  The adjudicator gave him an opportunity to explain those inconsistencies but he was not persuaded by his explanations.

8.The adjudicator set out in full why he found the applicant implausible and set out in detail what those inconsistencies were that undermined the credibility of his claims.  He ultimately rejected the applicant’s claim that he was involved in or responsible for a boiler explosion.  He rejected the evidence that his employer made a complaint to the authorities against the applicant relating to a boiler explosion.  He rejected the applicant’s claim that the authorities investigated or charged him with any offence relating to such an incident.  The adjudicator rejected the applicant’s evidence that he fled Bangladesh in fear of his life and is sure that he fabricated his claims to apply for non-refoulement.

9.Despite this, the adjudicator did give the applicant an opportunity after the hearing to provide him with additional information because there remained a possibility that he could substantiate a claim under BOR 2 if he faced the death penalty or BOR 3 due to prison conditions in Bangladesh if convicted of causing an industrial accident that led to fatalities.  The applicant did not provide a newspaper report as he claimed he would but two photographs of a screenshot of a building on fire with no other details.  The adjudicator rejected any suggestion that he faced any charges from an industrial accident or the chance of a conviction or the imposition of the death penalty arising from a boiler explosion.

10.As a result of his finding, the adjudicator did not consider there to be a well-founded fear or a real risk the applicant will face persecution for a Convention reason if refouled to Bangladesh; his persecution risk claim failed.

11.As far as the BOR 3 risk is concerned, the adjudicator was not satisfied the applicant will face a real risk he would be subject to torture or CIDTP if refouled to Bangladesh.  The adjudicator was equally unconvinced he faced a risk of a violation of his rights under BOR 2. Therefore, his BOR 2 and 3 risk claim failed.

12.The adjudicator considered the definition of torture in Section 37U of the Immigration Ordinance in light of his findings and found the applicant failed to establish he will face a real risk of torture if refouled to Bangladesh.  His torture risk claim failed.

Leave to apply for judicial review

13.The applicant did file an affirmation but there are no grounds set out in it.  He repeats his claim and reiterates that his life is in danger in Bangladesh.  He states that he required more time to obtain documents to support his claim.

14.Despite the lack of grounds, I have still considered with rigourous examination and anxious scrutiny the adjudicator’s decision.  I however find no fault in it.  He has analysed the applicant’s claim with a high degree and standard of fairness.  He has ensured that he consider all four grounds; he has treated the appeal/petition as a rehearing.  He gave the applicant more time to submit a document that he proposed to locate.  He gave the applicant more time during the hearing to make submissions in relation to a BOR 2 claim.

15.I do not find any 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.

16.In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

Dated 28^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