Md Nazir Ahmed Sarkar v. Torture Claims Appeal Board and Another

HCAL 519/2017

[2018] HKCFI 801

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 519 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 Bruno Chan:

Leave to apply for judicial review granted.

Observations for the Applicant:

1.The applicant is a 50-year-old Bangladeshi national who arrived in Hong Kong on 1 August 2006 with permission to stay as a visitor until 4 August 2006 when he did not depart and instead overstayed until 2 July 2011 when he was arrested by the police and referred to the Immigration Department for investigation.  On 7 August 2012 he raised a torture claim with the Department under Part VIIC of the Immigration Ordinance, Cap 115 (“CAT”) on the basis that if he returned to Bangladesh, he would be harmed or killed by his rival political party known as Purbo Banglar Communist Party (“PBCP”), and of being persecuted by Sunni Muslims for switching his religion from Sunni Islam to Ahmadiyya in Hong Kong.

2.On 24 January 2014 his CAT claim was rejected by the Director of Immigration (“the Director”), and on 7 February 2014 he appealed against that decision to the Torture Claims Appeal Board (“the Board”).  On 10 June 2014 his appeal was dismissed by the Board.  In its decision the Board found on the evidence that the applicant if refouled would be at real and personal risk of severe pain or suffering at the hands of PBCP, as the adjudicator for the Board stated:

“ 32. Past incidents involving the Appellant directly did not involve serious physical harm. However there were two kidnappings and some violence. Serious mental suffering would necessarily be involved. There has been further and lethal violence against family members. On that occasion one of the assailants, according to the Appellant’s newspaper cutting, said that if the Appellant had been there, they would have ‘finished him today’. That amounts to a direct threat against the Appellant’s life. I think it must be taken as a real threat because the assailants came armed with firearms. It may be that the homicides were not premeditated, but if the same people were to come looking for the Appellant, armed with firearms, even if they did not set out to kill him at once, there would be a serious risk that that would happen.

33. I would accept that there is a real risk that if refouled, the Appellant is at risk of serious physical pain or suffering, indeed death which is the most serious of all, from PBCP members.  It is of course true that we are now in 2014, and the first kidnapping took place in 1997.  However the family killings in 2009 and the threat then uttered suggest that the PBCP have long memories and could still come after the Appellant if he were refouled.  It is reasonable to accept that the PBCP would do this for purpose of punishing him for getting away with their secret information, and/or to coerce him and even kill him to ensure his silence.”

3.The adjudicator however concluded that as there was nothing to indicate that such pain and suffering might be 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, they do not amount to “torture” within the statutory definition of the Immigration Ordinance.  For the same reason the Board also concluded that the applicant would not be at such risk on account of his claim based on religious discrimination as again there was nothing to indicate any involvement of any public official or person acting in an official capacity, and therefore dismissed the applicant’s appeal and confirmed the Director’s decision of 24 January 2014.

4.On 7 July 2015 the applicant with legal assistance from Duty Lawyer Service submitted a supplementary claim form (“SCF”) under the newly commenced Unified Screening Mechanism (“USM”) of for non-refloulement protection with the Immigration Department on the same basis of his fears of harm from PBCP and Sunni Muslims as before, and was assessed on applicable grounds other than torture risk which was already disposed of under his earlier CAT claim, namely risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights (“HKBOR”) Ordinance, Cap 383 (“BOR 3 risk”), risk of loss of life under Article 2 of section 8 of HKBOR (“BOR 2 risk”), and 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”).

5.On 30 November 2015 the applicant’s non-refoulement claim was rejected by the Director on all those grounds.  On 11 December 2015 the applicant again petitioned and appealed to the Board against that decision, and after an oral hearing in which he appeared before another adjudicator for the Board, his appeal was dismissed on 19 May 2017 essentially on the basis that this adjudicator considered there was no evidence of severe physical and mental pain or suffering, that there was no substantial risk or basis of fear, and that internal relocation was available to the applicant.

6.It is relevant to note here that while this adjudicator was not required in this appeal to deal with the applicant’s claim under “Torture Risk” as it had already been disposed of by both the Director and the Board in the applicant’s earlier CAT claim, he nevertheless decided to also deal with it as he explained at the commencement of his decision:

“ … Although strictly speaking today’s Decision needs to deal only with BOR 3 Risk, BOR 2 Risk and Persecution Risk (because Torture Risk has long been disposed of), I have decided, for completeness, to also address Torture Risk as the Appellant’s alleged facts apply to all the heads of claim so that this Decision becomes a complete document covering all aspects.”

7.Accordingly he arrived at the same conclusion as his predecessor that as there was no involvement of the state and hence the applicant’s claim under Torture Risk failed as he stated in paragraph 9:

“ The stated facts do not show harm or threat of harm as instigated by anyone quo the capacity of the State, nor was there any harm or threat of harm done or uttered under State authority, ‘Element 4’ of Torture is not established. Nor is there any substantial risk of the existence of ‘Element 4’ in future. This aspect alone dismisses the appeal under ‘Torture Risk.’”

8.He however went on to state a further reason why the applicant’s claim failed under Torture Risk:

“ 12. There is no evidence of physical or mental pain or suffering which satisfies ‘Element 1’, I realise that the lack of ‘Element 1’ in the past does not mean no torture in future, but the evidence does not establish substantial grounds showing a foreseeable and real risk.

13. Accordingly the appeal also fails under ‘Torture Risk’ due to a reason in addition to and independent of that stated in paragraph 9 above.”

9.As noted the adjudicator proceeded to find that the applicant has not suffered severe injury or serious harm under BOR 3 or BOR 2 or persecution risks in dismissing his appeal.

10.On 15 August 2017 the applicant filed his Form 86 for leave to apply for judicial review of that decision of the Board, which was subsequently amended with the benefit of legal representation on Legal Aid with the following grounds of review:

(a) The adjudicator acted ultra vires and/or was procedurally improper in making a finding in his decision on ‘torture risk’ when the petition was only heard on BOR 2, BOR 3 and persecution risks.

(b) Contrary to the applicant’s legitimate expectation which arose as a result of a previous TCAB finding with regard to ‘torture’ that conceded that the applicant was ‘at real risk of serious pain or suffering, or indeed death,’ the adjudicator subsequently and without giving reasons, substituted his own finding that there was no such risk.  Further and/or in the alternative, in the absence of any demonstrable irrationality, relevant consideration or fresh material justifying such departure, the adjudicator acted in such a manner as to create an inconsistency which was procedurally improper.

(c) The adjudicator acted ultra vires by applying the incorrect legal test for persecution and in substituting his own test for persecution in the assessment of risk.

(d) The adjudicator was procedurally unfair and/or unreasonable and acted below the required standards of fairness by placing too much reliance upon Wikipedia as a primary source of evidence in respect of Country of Origin Information and further, failed to take all relevant considerations into account.

(e) The adjudicator acted unreasonably in conflating Bangladesh with Pakistan in his assessment of risk.  

11.The first two grounds are essentially based on the same complaint that it was not proper for the adjudicator to make a finding of fact which he was not asked to do in the appeal and which turned out different or inconsistent to that made by the first adjudicator in the Board’s earlier decision which has never been challenged, and hence it is according to the applicant both wrong in law and in principle and unfair in procedure, and in the premises I agree that the applicant does have an arguable case under these grounds for his intended challenge against that decision of the adjudicator.

12.As ground (c) also refers to the same finding by the adjudicator upon which he is said to have wrongly relied on in his assessment of the applicant’s claim under persecution risk, I agree that there is similarly an arguable case under this ground.

13.Regarding the complaint under ground (d) of the adjudicator relying too heavily on Wikipedia as Country of Origin Information (“COI”), amounting according to the applicant to over 40% of his sources in determining his appeal, when Wikipedia is written collaboratively by volunteers and that any person without the need to prove expertise or specialized knowledge can write and make changes to Wikipedia articles and can do so anonymously, while the remainder of the COI relied upon by the adjudicator is also largely wanting as outdated and being very basic in nature, and hence in taking into account unreliable sources of COI and in failing to take into the relevant COI the adjudicator is said to have acted unreasonably.

14.Whilst what the applicant says about Wikipedia may be true, in my view that does not follow that those COI sourced from them and relied upon by the Adjudicator must necessarily be false or inaccurate or unreliable, and that it is for the applicant to show where specifically did the adjudicator get it wrong from his COI, especially now that the applicant is legally represented and is certainly capable of being more specific about his complaint.  In the absence of such specifics I am not satisfied that there is any prospect of success with this ground of the applicant.

15.As for ground (e), in dismissing the applicant’s claim of fear of persecution for converting to being an Ahmadiyya Muslim, the Adjudicator relied on three pieces of COI and from one of which entitled “Ahmadiyya by country(Wikipedia: 2014 assessed 16 July 2015)” he cited the following passage:

“ According to the World Christian Encyclopedia, the Ahmadiyya movement is the fastest growing sect within Islam as of the early 21^st century. The country with the largest Ahmadiyya population is Pakistan, with an estimated 4 million Ahmadi Muslims.”

16.The Adjudicator then stated this in his conclusion:

“ It can be seen from the above articles that although Ahmadiyyas face hatred and attack from other Muslim groups, such hatred is not connived in, let alone encouraged, by the Bangladesh Government. The fact that there is factional hatred does not advance the Appellant’s claim, any more than it is a phenomenon present in Bangladesh with violence erupting from time to time. Even if a country does not have a wholly effective domestic protection against violence, it is not ‘official acquiescence’: JFK HCAL 42/2013, judgment at §15. There is no pronouncement by any court or tribunal that Bangladesh is a country where ‘fragrant, gross and massive abuse of human rights’ is practiced, but even if this is practiced, the phenomenon per se does not advance a claim: the law is cited in paragraph 6 below. The article ‘Ahmadiyya by country’ also shows that there are 4 million Ahmadi Muslims living in Pakistan, and clearly they are not ‘wiped out’. On the contrary, the articles reports that Ahmadiyyas are ‘the fastest growing sect within Islam in this country’. In other words, although there is hatred by other Muslims, Ahmadiyyas are by no means in danger of being wiped out such as in the process of genocide. The Appellant’s alleged fear of personal attack in his alleged 2^nd source of fear is mere speculation, and is now dismissed.”

17.On this basis the applicant argues that it was unreasonable for the adjudicator to rely on the situation of Ahmadi Muslims in Pakistan to make an assessment of risk as to Ahmadi Muslims in Bangladesh, and that short of a thorough and unbiased examination of the situation of Almadi worldwide or for the purpose of providing background information, the reference to countries other than the risk state is not only unhelpful but unreasonably conflates the two countries for no rational reason.

18.It may be unfortunate with the way the adjudicator used the COI on Ahmadi Muslims in Pakistan as a comparison of the risk of those in Bangladesh which were after all much smaller in numbers in the latter country, but the adjudicator did also rely on the two other COI which were specifically about Ahmadiyya in Bangladesh, and did note, correctly in my view, that the applicant’s fear of personal risk is mere speculation, as it has clearly been held by the Court of Appeal that even if there is in existence in the country concerned of a consistent pattern of gross, flagrant or mass violations of human rights, that alone does not as such constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture or persecution upon his return to that country, and that additional grounds must exist to show that the person will be “personally at risk”: see TK v Jenkins [2013] 1 HKC 526 at paragraph 29.  In this case as noted by the Adjudicator, the applicant only converted to being an Ahmadi Muslim after he left Bangladesh for Hong Kong, and there is simply no evidence to show that he will be personally at risk upon his return to Bangladesh.  I am therefore not satisfied there is any prospect of success under this ground.

19.In the premises and accordingly I allow leave for the applicant to apply for judicial review of the Board’s decision of 19 May 2017 on his first three grounds.

Dated the 20^th day of April 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