Md Sirajul Islam v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL496/2017

[2018] HKCFI 1054

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 496 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

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 by boat on 21 May 2014 only to be arrested by the police on 1 June 2014.  The applicant then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 20 January 2016 and 8 December 2016.  The applicant lodged a petition/appeal to the Torture Claims Appeal Board (“TCAB”) which dismissed his appeal on 29 June 2017.  The applicant filed a notice of application for leave to apply for judicial review on 8 August 2017 and requested an oral hearing which was set down on 10 January 2018; the applicant appeared in person.

2.The basis of his claim was that if he were to return to Bangladesh he would be harmed or killed by some extortionists from the Awami League (“AL”) because he had refused to pay them protection money as demanded.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in detail in their decisions therefore, I will only summarise it here.

3.The applicant was a farmer, married with two children and had little formal education.  In 2009 he and his childhood friend formed a business selling agricultural produce in the village.  He mortgaged his father’s land and used his own savings to raise the capital to start the business.  At the beginning of the business venture, five men with pistols went to their business premises and demanded 1 million takas as protection money so that their business would flourish peacefully under the protection of the AL.

4.The applicant told the men that they could not afford to pay and they threatened him with death if they could not pay.  He asked for time and they gave him 15 days.  They warned him not to report them to the police or else they would kill his family.  The applicant was too scared for his family safety and did not report it to the police.

5.The applicant told his partner about the extortion demand and he immediately took back his investment and told the applicant to handle the extortionists himself.  After that day the applicant received threatening phone calls daily about the pending payment date.   On the ninth day, he was ambushed and beaten up as well as cut with a chopper.  He was then kidnapped and taken to a nearby village and told to call his family from a mud hut and tell them to pay a 400,000 takas ransom.  The applicant managed to escape by breaking out of a bamboo window that night and there was no guard outside.  He ran for three hours to his brother-in-law’s house two villages away.

6.His brother immediately sent him to Dhaka that night to stay with a friend.  The applicant contacted a friend who lived in Chittagong who agreed to help him.  The applicant then took a bus which took about five hours to Chittagong to stay with his friend.  Once there he called home and found out that the extortionists were looking for him.  His family mortgaged more land to help him and they raised 450,000 takas to help him leave Bangladesh because they believed his life was in danger.  His friend arranged for him to go to China from Bangladesh.  He left Bangladesh on 27 October 2013 but he found out in China that they did not offer asylum seekers protection so he entered Hong Kong illegally by boat seven months later after paying an agent US$1,300.

7.The adjudicator of the TCAB, 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.The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles applicable to the four grounds. He set out the applicant’s evidence and claim as well as the burden of proof and standard of proof in such claims.  He set out the applicant’s evidence, documentary evidence and his analysis of it, including his credibility.  He considered ample Country of Origin (“COI”) information and concluded there was State protection available if there was any risk if refouled.  He also found information to support a viable internal relocation option without undue hardship.

9.The adjudicator found there to be inconsistencies and improbabilities in the applicant’s evidence that caused him to seriously doubt the veracity and truthfulness of his claim.  The adjudicator set out those inconsistencies in his decision and concluded that the applicant was not a witness of truth and he did not believe he was a victim of extortion nor was he kidnapped.  He did not find him a genuine claimant which meant that the applicant had not made out a case for non-refoulement protection.

10.As a result of his careful assessment, the adjudicator found the applicant was unsuccessful in showing he was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for the purpose of a non-refoulement protection claim.  The adjudicator confirmed the decisions of the Director.

Leave to apply for judicial review

11.I have considered with rigourous examination and anxious scrutiny the papers and 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.

12.There are eight grounds in this affirmation and most contain no particulars.  Those include ground 5, 6, 7 and 8.  As an example, for ground 6, it was never part of the applicant’s case there was a need for psychological or psychiatric evaluation.  For ground 7, the adjudicator certainly set out the correct standard of proof in his decision.  There are no particulars here to illustrate where he has applied the incorrect standard.  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.  These grounds have no merits.

13.In grounds, 1, 2, and 4 it is submitted the adjudicator failed to consider relevant and up-to-date COI information and research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning.  The adjudicator considered COI material and State protection; he cited his references clearly.  He had no reason to go into great detail considering the reason he dismissed the applicant’s appeal yet he did.  These grounds are not arguable.

14.Ground 3, a failure to evaluate and make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights, has no merits.  The adjudicator did not believe the applicant was a witness of truth; not a genuine claimant.  He had no need to go on to evaluate or make such a finding of fact in relation to any violations of human rights in Bangladesh under such circumstances.  There is no merit in this ground.

15.In addition, 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 he confirmed during the oral hearing to this court that he had the procedure of the hearing explained to him by the interpreter at the appeal.  There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal.

16.The applicant complains that he answered all the questions honestly and he is aggravated that his credibility was found questionable.  However, this complaint or submission is misleading when the applicant elected during the appeal hearing to remain silent and not answer questions or give evidence.

17.When asked if the applicant had any further submissions during the oral hearing of this application, the applicant repeated on several occasions that all he required was another two years in Hong Kong before he returned to Bangladesh.

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 24^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