Ali Md Liakat v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL718/2017

[2018] HKCFI 876

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 718 of 2017

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 on 19 June 2014 only to be arrested immediately.  He then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 25 August 2016 and 16 June 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 20 September 2017.  He filed a notice of application for leave to apply for judicial review on 4 October 2017 and requested an oral hearing which was set down on 7 March 2018.  The applicant appeared in person having had his application for legal aid refused.

2.The basis of his claim was that if he was refouled to Bangladesh he would be harmed or killed by members of the Awami League (“AL”) because he had disrupted their political activities.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in detail in their decisions therefore, I only intend summarise it here.

3.The applicant was born and brought up in Dhaka, married with one child and has always been a supporter of the Bangladesh Nationalist Party (“BNP”).  In 2003 the applicant developed a rivalry with a man called Liton that initially had nothing to do with politics.  However, by 2007 Liton and his brother Massoud became involved in the AL and began harassing the applicant and other BNP members during their meetings.  This went on for a few years.  It came to head in 2013 when they actually would physically obstruct the applicant and other members of the BNP to try and stop them from holding rallies on a number of occasions.  They had on occasions waved wooden sticks, brandished pistols and even ignited bombs and thrown them towards the applicant and others.

4.In February 2014 the applicant was threatened with death by Liton who was holding a pistol at the time; he had gained prominence in the AL by then.  This prompted the applicant to fear for his own safety and leave Bangladesh for a while, travelling to India and Nepal.  He returned a few months later only to be attacked by Liton and other AL members so he left again and made his way to Hong Kong.

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 conducted an oral appeal hearing and treated the hearing as a de novo hearing/rehearing.  The applicant elected to answer questions.  He correctly set out the law and key legal principles applicable to the four grounds.  He also correctly set out the approach for assessing the credibility of such applicants, citing the relevant authorities he referred to.  He then set out the applicant’s evidence, his assessment of it and his findings.

7.He concluded the applicant was probably a witness of truth.  He believed he was a low level political activist in his local area who had not continued his political involvement since he left Bangladesh in 2014.  He is not a political activist now, had no position within the BNP and is not known outside his very local area.  The adjudicator concluded that the level of real risk to the applicant in his local area from non-state actors was very low; he described it as falling below that which could be categorised as a real risk.

8.He did go on to consider that if he was wrong and there was a risk then according to the Country of Origin (“COI”) information, he could not receive sufficient of protection in his local area.

9.The next question therefore, is whether the applicant could safely and reasonably relocate to a different part of Bangladesh to avoid the non-state agents of harm who may seek to target him in his local area.  If he could then his claims will fail.  The adjudicator found that the applicant could reasonably and without undue hardship relocate outside his home area as he had previously done once before coming to Hong Kong.  As a result of that finding, the applicant does not face a real risk of any form of serious harm because that risk is simply so unlikely to materialise or because he could avoid the risk by relocating to a different part of Bangladesh.

10.The adjudicator applied his findings to the applicable grounds and concluded that the applicant either faces only a fanciful risk of serious harm in his local area or, if he does face such a risk he could avoid it by relocation.  That being the case, his fear of persecution is not objectively well-founded and he has failed to establish a real risk of persecution as defined in the Refugee Convention; his persecution risk claim failed.

11.For the same reasons there is no basis to conclude there would be any real risk to the applicant’s right to life or that he would face the prospect of torture or CIDTP; his BOR 2 and BOR 3 risk claims failed.

12.The same reasons apply to the torture claim and there is no real risk that the applicant would face torture as defined by section 37U(1) of the Immigration Ordinance; his torture risk claim failed. The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

13.I have considered, with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions.  I find the adjudicator’s decision to be without fault.  He analysed the material, claim and evidence carefully.  The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

14.There are nine grounds in this affirmation and all contain no particulars.  Ground 9 can be disregarded outright, the applicant accuses the adjudicator of failing to arrange an oral hearing when the opposite is true.  Grounds 5, 6, 7 and 8 contain no particulars.  As an example, for ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion.  There was no complaint made to the adjudicator concerning the performance of the lawyer assigned.  Ground 5 complains of the adjudicator taking into account irrelevant considerations and failing to put weight on facts that were favourable to the applicant but there are no particulars.  Ground 7 submits the adjudicator applied the incorrect standard of proof but does not expand on that statement.  These grounds have no merits.

15.In grounds 1, 2, and 4, it is submitted the adjudicator failed to consider relevant and up‑to-date COI research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning.  There are no particulars provided but in any event, the adjudicator very fairly considered relevant and recent material that supported the applicant’s concerns and made a finding there was notsufficient State protection in the applicant’s local area if there was a real risk to him if refouled.  These grounds are not arguable.  I highly suspect these grounds were taken word for word from the almost identical, what I call the often used “pro forma” affirmation other applicants often use and not specific to this decision.

16.The applicant complains he was not given sufficient time to prepare for his appeal, the appeal bundle was in English, he was confused during the appeal and felt the hearing was unfair to him.  I was satisfied the applicant had the assistance of an interpreter and had the procedure of the hearing explained to him.  He made an election to give evidence.  There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal.

17.There is a complaint the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is misleading because the Director rejected it on 16 June 2017 which was before the oral appeal hearing date of 27 June 2017.

18.There is a complaint the applicant answered all the questions honestly and is aggravated that his credibility was found questionable.  Again this submission makes no sense and was clearly cut and pasted from an affirmation referring to another applicant because this adjudicator found this applicant was probably a witness of truth.  He did not find his credibility questionable.

19.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.

20.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 4^th day of May 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