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

HCAL522/2017

[2018] HKCFI 1020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 522 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 first entered Hong Kong in December 2000 as a visitor but overstayed and was arrested in July 2002.  He was removed from Hong Kong in September 2002.  The applicant then used a passport in another name and left Bangladesh in January 2004 and travelled between China and Hong Kong on many occasions before returning to Bangladesh in June for a month.  He left again in July for China.  He then travelled between China and Hong Kong on several occasions.  The applicant last arrived in Hong Kong on 5 September 2004 and was required to leave two days later but overstayed.  He surrendered to the Immigration Department on 3 January 2012 having overstayed for over seven years from 7 September 2004.

2.The applicant lodged a torture claim on 3 January 2012 which became a non-refoulement protection claim and incorporated four applicable grounds under the unified screening mechanism which the Director of Immigration (“the Director”) rejected on 18 January 2016 and 21 November 2016.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 11 August 2017.  The applicant filed a notice of application for leave to apply for judicial review on 16 August 2017 and requested an oral hearing which was set down for 9 January 2018.

3.The applicant had applied for legal aid but not until October 2017, which is several months after his application.  He had no reasonable excuse for not making the application at the same time.  He applied to adjourn the oral hearing because the legal aid application had not yet been processed by 9 January.  I refused because he should have made the legal aid application much earlier than October; his application was tardy and delayed the process.

4.The basis of his claim was that he would be harmed or killed by Kalam if he were to return to Bangladesh.  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 summarise it here.  The applicant was born in Dhaka, had 10 years of education, is married with one child and worked as a lab technician for two years until 1998.

5.Kalam was the Awami League (“AL”) leader in his village and therefore influential and well-connected.  He began to harass and threaten the applicant after he attended a meeting of the Jatiyo party in Doha. The applicant is not member of this party but happened to be visiting his relatives one day in 2003 and was invited by a relative to attend.  During the meeting members of the AL which included Kalam attacked the meeting and everyone dispersed.  Kalam did follow the applicant but lost him in the crowds. The applicant stayed with his father-in-law for a week after the attack and then went home.

6.After he returned home, Kalam visited him with several men and accused him of killing his cousin at that party meeting.  He demanded the applicant pay him 200,000 takas or else he would either kill him or arrange for him to be arrested and imprisoned by the police.  The applicant said he did not have that money and the group beat him until he was unconscious with sticks.  The applicant woke up in hospital with a fractured sternum and broken coccyx.

7.The applicant then went to hide at his father-in-law’s home after his discharge from hospital which was three hours away.  He remained there until he left the country hiding from Kalam.  He did not go to the police because of the influence of Kalam.  They did visit the applicant’s father and demand payment of that money; death threats were made if the money was not paid.  His family members were not hurt or injured.  Because of these visits and threats, the applicant’s father advised him to leave Bangladesh in case Kalam found him hiding there and framed him for the murder.

8.It took about six to eight weeks to arrange for his passport and Visa before the applicant could leave Bangladesh and fly to China.  The applicant remained for four months in Hong Kong but did not overstay before returning to Bangladesh.  However, Kalam came looking for him having heard he was back and made the same threats if money was not paid.  It was arranged for the applicant to leave for China again in July 2004.

9.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”).

10.The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  The adjudicator correctly set out the law and key legal principles applicable to all four grounds.  He set out the applicant’s claim and evidence and his analysis of it.  The applicant’s purported attempts to obtain medical evidence from the clinic in relation to his treatment in mid-2003 were not believed and his various assertions over the years have been deemed entirely inconsistent by the adjudicator.

11.The adjudicator applied the law to the four grounds and found that even on the applicant’s own evidence he was not able to make out a case for non-refoulement protection on any ground.  He gave full reasons why and found the applicant’s past experiences did not amount to torture as defined by section 37U(1) of the Immigration Ordinance which meant the adjudicator was not persuaded that there are substantial grounds for believing the applicant would be liable to torture if refouled to Bangladesh so his torture risk claim failed.

12.The adjudicator found that on his own facts the applicant’s past experiences did not amount to ill-treatment for the purposes of BOR 3.  Ill-treatment must attain a minimum level of severity if it is to fall within the scope of BOR 3; the adjudicator was not persuaded there was evidence of that and he was not persuaded there are substantial grounds for believing he would face a genuine and substantial risk of being subjected to severe ill-treatment if refouled so his BOR 3 risk claim failed.  There was no suggestion that his rights under BOR to would be violated so his BOR 2 risk claim failed.  Lastly, on his own facts there was no evidence he would be subjected to persecution for a Refugee Convention reason so his persecution 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 and grounds of this application.  I find the adjudicator’s decision to be without fault.  He analysed material, claims and evidence with care.  The same applies to the decision of the Director.  The applicant’s grounds and complaints are not made out.  I find no substance in the eight grounds of this application.

14.There are eight grounds in this affirmation and most contain no particulars.  Those include grounds 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.

15.In grounds 1, 2, and 4 it is submitted the adjudicator failed to consider relevant and up-to-date Country of Origin (“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.  Again particulars have not been given in relation to these grounds.  He had no reason to go into great detail considering the reason he dismissed the applicant’s appeal.  The adjudicator did make reference to information in his decision that related to internal relocation.  These grounds are not arguable.

16.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.  Consideration of these concepts do not arise unless there is a substantial risk of a real personal chance the applicant will be tortured or ill-treated if refouled.  In this case, the adjudicator made a finding there is no substantial risk or a real personal chance.

17.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 had the procedure of the hearing explained to him.  There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal.

18.There is a criticism that the Immigration Department did not screen the BOR 2 risk before the TCAB but this is plainly misleading when the Director rejected that risk in November 2016 and the adjudicator of the TCAB rejected in August 2017.

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 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