Hossain Md Delowar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL516/2017

[2018] HKCFI 1119

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 516 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 entered Hong Kong illegally and claimed to have arrived on 8 June 2014 only to be arrested by the police on the same day.  He then lodged a non-refinement protection claim which was rejected by the Director of Immigration (“the Director”) on 17 February 2016 and 24 March 2017.  He lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which was rejected on 4 August 2017.  He filed a notice of application for leave to apply for judicial review on 15 August 2017 and requested an oral hearing which was set down for 18 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 Rahim, the secretary of the Awami League (“AL”) and other AL members in his area because he refused to switch allegiance from the Bangladesh Nationalist Party (“BNP”) to the AL.  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.

3.The applicant was born in 1957 and has experience working as a chemist in Dhaka and then in a factory.  He is married with four children.  In 2006 the applicant joined the BNP as a member and was active in the party.  In early 2008 three AL leader’s cornered him and ordered him to quit the BNP and join the AL.  They did not physically abuse him but threatened to kill him if he did not join the AL.  These three members continued to make the same demand of him several times a month for a few months.  In June 2008 those same three AL members approached him with other men and assaulted him with daggers.  He was stabbed in the leg and then fainted.  He then went to a private doctor who stitched up his leg wound but he did not report this to the police because the AL were popular and connected with the police.

4.Six months later the AL won the general election and the applicant believed that his life was now more at risk than ever.  In 2009 he was threatened in his own home by the three same AL members who continue to demand he joined the AL.  Because of the persistent threats to kill him if he did not join their party the applicant decided to relocate to Chittagong which was seven hours away by train at the end of 2009.  He remained therefore two months before coming home because he believed it was now safe to do so.

5.However, after he returned home, the same three AL members kept threatening him a couple times a month.  In mid-2012 the same three AL members and a group of men assaulted him outside the BNP offices; he fainted during the beating.  He was bruised all over and his right shoulder was dislocated.  He was taken to a private doctor for treatment and again he did not report this to the police.

6.He then moved to live with a relative of a friend in early 2013 to avoid the three AL members and was supported by his son.  His family told him that those AL members visited his home and demanded to know of his whereabouts on about 15 occasions.  He returned home after six months because he missed his family and returned to work at the same factory as before.  Every time he met the same three AL members they made the same threats to him.  Because of these repeated threats the applicant took the advice of others and decided to leave Bangladesh for his own safety.  He obtained his passport in November 2013 and left Bangladesh on 4 May 2014.

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 treated the appeal as a rehearing and the applicant elected to give evidence.  The adjudicator correctly set out the law and key legal principles applicable to those grounds as well as the applicant’s evidence and her analysis of it.  She also set out the Country of Origin (“COI”) information that she referred to and relied on in her determination.

9.The adjudicator found discrepancies and inconsistencies in the applicant’s evidence and oral evidence which led her to find that he had exaggerated his importance to the BNP party.  She set these discrepancies and inconsistencies out in her decision.  The applicant claimed the reason the AL wanted to recruit him was because of his importance.  The applicant actually admitted to the adjudicator that he was not an influential person in the BNP in his area which does not explain why he was repeatedly targeted and pressurised over years by the same three AL members.  He even admitted that he was not afraid of the threats that were uttered.  The adjudicator concluded that he was not a genuine claimant and his claim had not been substantiated; he had failed to discharge the burden of proof.

10.Because of her finding that he was not a genuine claimant nor a reliable witness, the adjudicator found that he had failed to establish a claim under any ground.  There was no real risk the applicant would face torture as defined and set out in section 37U of the Immigration Ordinance therefore, his torture risk claim failed.  There was no evidence of any real risk to the applicant’s right to life or that he would face the prospect of torture or CIDTP therefore, the BOR 2 and BOR 3 risk claims failed.  Lastly, the adjudicator found the applicant could not establish he had a well-founded fear of being persecuted for reasons set out in the Refugee Convention if he was refouled to Bangladesh therefore, his persecution risk claim failed.  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 as well as the applicant’s oral submissions.  I find the adjudicator’s decision to be without fault.  She analysed material, claim and evidence carefully.  The applicant’s complaints against her and procedure undertaken are not made out.  I find no substance in the many grounds of this application.

12.There are eight grounds in this affirmation and all contain no particulars.  Grounds 5, 6, 7 and 8 container particulars.  As an example, for ground eight, 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 allegation.  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 research, failed to do sufficient research 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 in great depth because she found the applicant was not a genuine claimant nor 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 for the same reason.  These grounds are not arguable.

14.The applicant complained that 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.  During the oral hearing, the applicant alleged that he told the adjudicator he was confused but once the interpreter explained the procedure to him, he was no longer confused.  Therefore, there is nothing in this ground.

15.There is a complaint that the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is very misleading because the Director rejected it prior to the oral hearing date.  In fact, the adjudicator discussed the Director’s decision with the applicant and he said he had nothing to add.

16.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.

17.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