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

HCAL493/2017

[2018] HKCFI 1160

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 493 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 was a Bangladeshi national who claimed to have entered Hong Kong illegally by boat on 15 July 2014 only to be arrested by the police on the same day.  The applicant then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 31 March 2016.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which was rejected on 28 July 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 for 15 January 2018.  The applicant appeared in person having had his application for legal aid refused.

2.The basis of his claim was that if he were to return to Bangladesh he would be harmed or killed by Asad and Irsahil (“A&I”) and 10 to 12 of their followers from the Awami League (“AL”) because he refused to switch allegiance from the Bangladesh Nationalist Party (“BNP”) to the AL.  Both the Director and the adjudicator set out the applicant’s evidence and case in detail in their decisions therefore, there is no need to repeat it here.

3.The applicant says he became a supporter of the BNP and its youth wing the Jubo Dal Party (“JDP”) in 2004 when he was 25 years old and he became a member of the BNP in 2012.  After he became a member and from the end of 2013 he was troubled and harassed by the AL and their followers over the telephone about 20 times; they demanded he switch allegiance to the AL and threatened him with death if he refused.  Not long after he was arrested by the police and spent a month in prison for fighting.  In mid-2014 he again received ultimatums to join the AL under the threat of death.  He became afraid and moved to Chittagong on 2 July 2014 where he was threatened again over the telephone.  He then moved to Dhaka to stay with a friend before leaving for Hong Kong on 11 July 2014.

4.The adjudicator of the TCAB, as did the Director, analysed the applicant’s claim under the following 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”); and

(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”).

5.The adjudicator conducted an oral hearing and treated the appeal as a rehearing. The applicant elected not to answer questions and give evidence. The adjudicator set out the law and key legal principles applicable to the three grounds as well as the burden of proof and standard of proof in such claims. He summarised the applicant’s evidence. He considered Country of Origin information (“COI”) and found information that supported the allegations of the applicant but also found evidence to suggest State protection was reasonably available for victims of crime. He also found internal relocation a viable option without undue hardship if the applicant had any danger or risk at home.

6.The adjudicator applied the law and tests for each ground to the applicant’s evidence; he applied them on the basis that the applicant’s evidence was true. On the applicant’s own facts, he had never been physically assaulted by his enemies and had certainly not suffered injury which was severe pain and physical or mental suffering that reached the minimum level of severity required to be defined as torture. The adjudicator found that even if those threats had been issued by those men the applicant fears, there is no evidence they were acting in the official capacity of the government or with the acquiescence of officials of the government.

7.The adjudicator found that when he applied the applicant’s evidence to all three grounds, the applicant had not made out a case for non-refoulement protection. On the applicant’s own facts, he was not able to establish within the definition of torture under section 37U(1) of the Immigration Ordinance that severe pain or suffering had been inflicted on him by members of the AL and his named enemies and that there was a real risk of torture by the same people if he returned to Bangladesh. The adjudicator found that the applicant’s claim on his own facts had failed to invoke the protection of BOR 3. Lastly, the adjudicator found could not satisfy the criteria for persecution, for example, he had not proved a well-founded fear of such harm, harm that had never happened to him. Therefore, he found the applicant unsuccessful in showing he was at risk of torture, unable to invoke the protection of BOR 3 and could not prove a persecution risk for the purpose of a non-refoulement protection claim. The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

8.I have to consider with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find no fault with the adjudicator’s decision.  The applicant put forward three grounds in his supporting affirmation and I find them all to be without merit.

9.In the first ground, the applicant suggests that the appeal bundle was served only days before the oral hearing and because it was in English, he could not afford to have it translated.  This meant he arrived at the appeal hearing confused and without a full understanding of the proceedings.  The decision of the TCAB states that the applicant had his rights explained to him at the beginning of the hearing and he preferred to remain silent.  There is no record of any complaint by the applicant of being confused or any request by the applicant for the assistance of the interpreter to interpret the appeal bundle to him. Moreover, he made this application and affirmation in English which throws even more doubt on this ground. I find no merit in this ground.

10.During the oral hearing the applicant, in contradiction to his affirmation, confirmed that the interpreter did explain the procedure to him and did explain the bundle to him.  He added that he requested an adjournment of the appeal because he was not feeling well but had not yet visited a doctor but the adjudicator refused his application.  However, this is not mentioned in his supporting affirmation nor a ground put forward by the applicant.

11.In the applicant’s second ground he criticises the adjudicator for doubting his credibility when he answered all of his questions honestly.  However, the decision makes it clear that the applicant elected not to give evidence or answer questions and he did confirm this was the truth during the oral hearing.  There is no merit in this ground.

12.The third ground is a complaint that the adjudicator relied on COI that was not officially recognised, hearsay and out of date.  There are no particulars supplied by the applicant to support this ground and I find no merit in this ground.

13.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.

14.In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, para 14-17.  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