Md Mir Shafi Miah v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL470/2017

[2018] HKCFI 834

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 470 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 entered Hong Kong illegally from China on 15 April 2007 and was arrested by the police on 23 December 2007.  He filed a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 4 August 2014.  He lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which dismissed his appeal on 16 March 2015.  However, the above proceedings did not include a BOR 2 risk claim.

2.On 6 January 2017 the Director made a further decision and sent to the applicant a Notice of Further Decision informing him that he had failed to establish a personal and real risk of his absolute and non-derogable rights under BOR 2 being violated if refouled.  The applicant had a right to appeal/petition and did so.  That appeal/petition was determined without a hearing by the TCAB and on 21 July 2017 it was dismissed.  The applicant then filed a notice of application for leave to apply for judicial review on 31 July 2017 of that decision.  This application only applied to that decision and not the decisions covered in paragraph 1 above.

3.The applicant requested an oral hearing and it was set down for 22 December 2017.  The applicant appeared in person having had his legal aid application refused.  At the hearing, he informed the court that he felt sick, had a cough and cold, a fever and could not talk.  He then proceeded to talk and talk about his claim.  He was interrupted by the court and asked if he could continue with the hearing that morning.  He asked for an adjournment.  The court pointed out to him that he seemed well, could not stop talking and had a strong voice and asked if he could continue today.  He said he could and was invited to sit and make submissions.

4.The basis of the applicant’s claim was that if he were refouled to Bangladesh he would be harmed or killed by his uncle because of a land dispute with him.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in their decisions in full therefore, I only intend summarise it briefly here.

5.The applicant was born in 1976, had little education, was orphaned young and had 10 siblings.  His grandfather had left a piece of land to his father and uncle to be shared equally.  After his father died, his share was left to the applicant and his siblings.  Problems arose when his uncle who was rich and powerful sold his land as well as the applicant and his siblings land without their consent to a relative.  When the applicant and his brother tried to complain  through the village elders, his uncle threatened the village elders.  The police were told to hold the applicant at the station whilst his uncle sent over someone to beat them for reporting him.  The applicant filed a court case against their uncle but at the same time decided to go to Dhaka to hide because their uncle had threatened to kill them.  His other siblings also scattered and hid from their uncle.

6.The applicant and his older brother decided to leave Bangladesh because they had heard from villagers that their uncle had instructed people to look for them.  The applicant arranged to travel to China and Hong Kong and paid 60,000 Takas.  He does not know where his brother went.  The applicant had supplied some court documents relating to this land dispute.

7.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”).

8.As I said above, this application only concerns the appeal decision that dismisses ground (d), the BOR 2 risk.  The adjudicator of the TCAB considered the fact that the applicant had not submitted additional information in relation to his BOR 2 claim to the Director for his consideration.  He did make some new allegations of fact in his appeal but they were relating to threats of action from his uncle who was a non-state actor.

9.The adjudicator set out Article 2 in her decision and analyse the applicant’s case and evidence.  What she finds is that on the applicant’s own evidence, he was not relying on a breach of the rights protected by BOR 2.  His source of fear was a private dispute over land.  His uncle was a non-state actor and there was nothing to show the government was involved in their dispute.  He did not put forward evidence to show he would be at risk of harm from capital punishment inflicted by the government of Bangladesh or face harm from his government that would put his life at risk.  He was never putting forward a case that if refouled there was a real risk of a breach of BOR 2.  There was no necessity of an oral hearing.

Leave to apply for judicial review

10.The applicant’s affirmation purports to contain eight grounds (page 23) and is the often seen, pro forma generic affirmation which contains no particulars and is usually applied to the decisions of all grounds but here only the BOR 2 ground decision is under scrutiny.  Therefore, only paragraphs/grounds 1 to 10 on pages 25 to 26 which have been adapted to this generic affirmation are relevant to this application and this was confirmed by the applicant during the oral hearing.

11.The first ground is that it is unjust and unfair to not hold an oral hearing.  I do not agree because it is not an automatic right and in a situation such as this, there would have been no necessity when there was no point of law, no issue of credibility nor any questions that require clarification.  I am sure the adjudicator considered whether it was necessary and she reached the right decision and by that she maintained a high standard of fairness despite not conducting a second oral appeal hearing.  There is no merit in this ground.

12.The second ground complains that the Director’s decision was in English and not in the applicant’s own language.  He submits how could he write the appeal form so quickly but yet he does.  There is no application for an extension of time.  There is no merit in this ground.

13.There is a complaint there was no lawyer provided for him to appeal this decision. The applicant had a lawyer up until his case was dismissed by the Director.  If his appeal had had merits, then the duty lawyer scheme would have continued to represent him.  There is no absolute right to free legal representation at every step.  There is no merit in this ground.

14.It is a further ground that there are insufficient reasons for rejecting the BOR 2 risk claim.  The Director’s Notice of Further Decision clearly adopts and makes reference to his reasons in his previous decision which is full and in great detail.  There is no merit in this ground.

15.Then there is this a complaint of out of date, hearsay source of news, the TCAB not telephoning the applicant with its ruling and an absurd suggestion that the TCAB dismissed the BOR 2 claim without the Director considering it first.  All grounds are without merit.

16.Lastly the applicant has submitted a copy of a letter he wrote to the Immigration Department dated 20 January 2017 claiming protection under BOR 2 and the ground is that he is shocked and surprised that the Director can reject his claim on 6 January 2017 by his Notice of Further Direction before the applicant actually applied for protection.  Even though this is ground is fooling nobody and really merits no explanation, I shall make it clear that the Director initiates the BOR 2 claim himself as a matter of policy.

17.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I have found the adjudicator’s decision to be without fault.  The applicant’s grounds and complaints are not made out.

18.I do not find any ground that shows there was an 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.

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

Dated 30^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