Sardar Md Manir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL492/2017

[2018] HKCFI 1159

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 492 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 on 5 February 2014 only to be arrested later on the same day.  He then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 19 July 2016 and 28 February 2017.  The applicant then lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 30 June 2017.  The applicant filed a notice of application for leave to apply for judicial review on 8 August 2017 requested an oral hearing which was set down for 15 January 2018.

2.The applicant appeared in person but applied to adjourn the hearing because he had applied to the legal aid for assistance on 27 November 2017 and had yet to hear a decision.  I refused the adjournment because the applicant did not apply for legal aid in a timely manner.  He filed this application on 8 August 2017 but did not apply for legal aid at the same time, he waited for two and half months before making the legal aid application.  He only made the application because he received a notice of hearing date from this court on 20 November 2017.  His explanation for the delay was illogical but he did confirm that he knew that he could apply for legal aid long before he actually did.  In my view the only reason for the timing of the late application for legal aid was to delay the hearing; the applicant was abusing the process.  I refused the adjournment to await the legal aid result.

Background

3.The basis of the applicant’s claim was that he would be harmed or even killed by members of the Awami League (“AL”) because he was an active member of the opposition party, Bangladesh Nationalist Party (“BNP”) and had refused to switch allegiance to the AL.  He was also frightened of arrest by the Bangladesh police because there was a warrant out for his arrest for seven false criminal charges.  He knew about these warrants before he left Bangladesh.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, there is no need to repeat it here.  The applicant also lived in fear of creditors because he owed money to two government banks in Dhaka and Chittagong.

4.The history of the applicant’s application prior to the decision of the Director is protracted; the Director sets it out in detail in his decision from paragraphs 5 to 18.  Ultimately the applicant failed to attend a screening interview by the Director as required.  The applicant had made numerous applications for time to produce supporting documents which never materialised.  The Director felt the applicant had been given sufficient opportunity from December 2015 and proceeded to consider his claim on the basis of what information was available to him.

5.The applicant had eight years of education, was married with two children and had experience as a salesman and then ran his own garment business from 2001 to 2013.  From a young age he was a supporter of the BNP - like his entire family and became a member in 2000; he would attend meetings and be involved in organising rallies on a regular basis.  In 2005 he became the BNP publicity secretary and had more responsibility.  From 2005 to the elections of 2014, the applicant was very involved with the BNP and even received a small cash allowance from the party.

6.There was an election at the end of December 2008 and the applicant found out that he was being targeted by the AL because he was such an active member of the BNP.  He accused them of harassing him just before a general election by reporting him to the police for a false fighting case.  Police did come and try and arrest the applicant twice but in vain.  He hid from the police.  In fact, he was involved in a fighting case but says it has been exaggerated by the AL to the police.  The applicant then left Bangladesh and hid in Nepal and India for a few weeks before returning just before the 2008 elections to assist his party.  The AL won the 2008 elections which led to further incidents.

7.After their victory, huge groups of AL members would come to the applicant’s home to intimidate him into joining the AL.  On each occasion he managed to escape from his home and hide.  The applicant and another committee member were their targets.  The applicant’s family were verbally threatened but never physically injured.  AL members were able to assault the applicant in the local market with sticks, kicks and punches.  On one occasion he fractured his skull and had to stay in hospital.  The applicant estimated that he was attacked 30 to 35 times when he went to the market before he left Bangladesh for China.  He never made a complaint to the police as it would have been futile.

8.The applicant helped to arrange a big public rally in Dhaka in March 2009 but as a result of this the AL filed another false fighting case against the applicant.  The applicant did admit that he was involved in some fights but did not know which particular fighting incident was mentioned in the police report.  The police tried to arrest him at home several times but the applicant was able to escape before they arrived.  The police told him to report to the station and surrender but he did not do that.  The police threatened more cases against him if he did not surrender.  The applicant heard that the police had received instructions from AL members to arrest and detain BNP members so the applicant went to stay with his relatives about six hours away in about March 2009 to evade arrest.

9.Despite his attempt to evade arrest, the applicant was arrested at his relative’s home and detained; he was then sentenced to 15 days’ imprisonment.  He served these 15 days and miss the public meeting in Dhaka.  He had report monthly to the police after that sentence which he did not do after a period of time.

10.From March 2009 the applicant was harassed frequently by AL members at home.  Often he was able to evade them before they arrived because neighbours gave advance warning.  The AL members told the applicant’s family that if he did not join the AL they would kill him.  In 2010 and 2011 the applicant heard that the police wanted to arrest him again so he went into hiding in Dhaka, about one hour away from home by bus.  However, after one week the police located and arrested him.  The arrest warrant accusing the applicant of assaulting a police officer which he says was false.  The applicant believed this arrest warrant coincided with a major party public meeting which he had to help organise.

11.When the applicant was arrested, he was assaulted in the police station and tortured. This led to a false confession that he had assaulted a policeman.  He was then taken to hospital to be treated for the injuries from the beatings by the police.  The applicant was then later released on bail for this false charge.

12.In 2013 the applicant organised another BNP rally in Dhaka which was interrupted by a large number of AL members and police officers who were determined to stop the rally reaching Dhaka.  Both sides became very violent and the applicant received head, back and hand injuries that required stitches.  After this rally, the applicant attended between 25 and 30 more rallies and during about eight of them, the applicant was injured by AL members disrupting their rallies.  He was seriously injured during a rally at the end of 2013.

13.After this the applicant was advised to leave Bangladesh whilst he still could because the AL and the police intensified their persecution of the applicant. In addition, the BNP had  decided to boycott the 2014 elections.  The applicant arranged a Visa for China and left on 9 January 2014 for China.  The applicant believes he cannot safely relocate internally within Bangladesh because of the political network of the AL.  He also believes that there is no State protection; the police want to arrest the applicant for false cases.

14.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”).

15.The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  The applicant was legally represented during this appeal hearing.  In his decision, the adjudicator set out the law and key legal principles applicable to the four grounds.  He set out the applicant’s evidence, claim and his analysis of it.  He considered the applicant’s credibility and reliability and concluded that he was not credible or reliable.

16.The adjudicator set out his reasons why he did not believe the applicant was a genuine claimant and why the only evidence he believed was the applicant’s own admission that he was a fugitive from arrest and from the law.  The applicant says the charges are politically motivated and false yet admits that he was involved in the fighting incidents from which those charges arise.  In any event, the adjudicator found the applicant could not prove that he was ever severely injured and/or suffered serious harm which is a requirement for all applicable grounds.

17.The adjudicator found that the applicant was not a genuine claimant therefore his appeal failed; the applicant could not show 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 also stressed that being a fugitive from the due process of the law in his own country meant he could not be defined as or qualified to be a refugee.  The adjudicator confirmed the decisions of the Director.

Leave to apply for judicial review

18.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.  The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

19.There are eight grounds in this affirmation and all contain no particulars.  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.  There was no complaint made to the adjudicator concerning the performance of the lawyer assigned.  In fact, the applicant was represented by the duty lawyer service in his appeal hearing by the same duty lawyer.  This duty lawyer did not put forward any particulars of his own failings to the TCAB.

20.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.

21.In grounds 1, 2, and 4, it is submitted the adjudicator failed to consider relevant and up-to-date Country of Origin (“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 did not need to consider COI because he found the applicant was not a genuine claimant and not at risk if refouled.  It was also unnecessary to assess State acquiescence or whether Bangladesh had a consistent pattern of mass violation of human rights.  These grounds are not arguable.

22.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 a lawyer who would have protected his interests.  There was an interpreter present to assist if the applicant had asked for assistance.  There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal.  There is no merit in this ground when the applicant is legally represented.

23.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 28 February 2017 which was long before the oral appeal hearing date of 15 May 2017.

24.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.

25.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 7^th day of June 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