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

HCAL551/2017

[2018] HKCFI 1121

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 551 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 claim to have entered Hong Kong illegally on 11 December 2013 only to be arrested by the police on 21 January 2014.  After his arrest, he lodged a non-refoulement protection claim which the Director of Immigration (“the Director”) rejected on 13 April 2016 and 21 June 2017.  The applicant then lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which was rejected on 17 August 2017.  He filed a notice of application for leave to apply for judicial review on 24 August 2017 and requested an oral hearing which was set down for 23 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 even killed by members of the Awami League (“AL”) and arrested by the police for a false criminal case filed by the AL against him.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, I only intend to summarise it here.

3.The applicant was born in 1987 and had 15 years of education.  He comes from a family of Bangladesh Nationalist Party (“BNP”) supporters and he himself has been a supporter since he was about 11 years old.  He became a member in about 2005 and was actively participating in party events.  In 2010 he was an organisation secretary at the district level of the BNP.  At the end of 2011 whilst he was at a BNP party meeting with a group of BNP workers, a large group of 30 to 35 AL supporters interrupted their party and began attacking the BNP group.  Some were armed with hockey sticks and choppers.  The applicant fled without being harmed but saw the party president of the district being attacked by the AL president of that district who was armed with choppers.

4.The applicant fled immediately to a friend’s home some 50 km away to hide and stayed there for about six months.  He did not even telephone his own family.  He did not go to the police because they would side with the AL as the AL were in power.  He did hear from the BNP president who told him he had been seriously injured during that attack.  He also learnt that the AL filed a false case with the police against BNP members including the applicant for being the aggressors in that attack.  He knew he could not go home.  He had to support himself so he started a partnership with another man as contractors but that business failed after five months.

5.The applicant then went to Dhaka to stay with an uncle and remain there for about a year; he applied for a passport whilst there.  After that he went to stay with a friend in Chittagong because he did not want to stay in one place for too long in case he was found by the AL.  He hid in Chittagong for about two months and then moved to Khulna which was about 300 km from Chittagong.  He lived there for about three months.  Whilst there he spoke to his mother who told him that he situation at home was unchanged.  When he heard this the applicant decided to leave Bangladesh and flew to China on 26 November 2013.

6.The Director and the adjudicator 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”).

7.The adjudicator treated the appeal as a rehearing and conducted an oral hearing.  The first appeal hearing was scheduled for 21 July 2017 but the applicant asked for it to be adjourned on the day because he was not feeling well.  It was rearranged for 2 August 2017.  The applicant elected to answer questions and give evidence.  The adjudicator correctly set out the law and key legal principles applicable to the four grounds.  He set out the applicant’s evidence and his analysis of it.

8.The adjudicator did not believe the applicant nor did he find him a reliable witness.  He found the applicant evasive to some of his questions.  The applicant contradicted himself and the adjudicator set out his contradictions and inconsistencies in his decision.  Some of the applicant’s evidence was hearsay which was not inadmissible but the weight given to such evidence was greatly reduced and did not prove the truth of the facts asserted.  He did not accept the applicant was a genuine claimant.

9.At the end of the appeal hearing the applicant admitted that he had his own contractor business from 2008 to 2012 and after the attack of 2011 he did not immediately flee his home to hide elsewhere but in fact had continued his business for another year.  He admitted that his business suffered because of the AL.  He admitted to the adjudicator that if his business had continued he would have stayed in Bangladesh.  The adjudicator took this as his main reason for leaving Bangladesh, not because he fled in fear of his life.  He left Bangladesh because his business failed.

10.As a result of his findings, the adjudicator found the applicant was unsuccessful in establishing 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, grounds of this application and the applicant’s submissions in the oral hearing.  I find the adjudicator’s decision to be without fault.  He analysed 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 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; it is a bare assertion.  There was no complaint made to the adjudicator concerning the performance of the lawyer assigned to the applicant. 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 Country of Origin (“COI”) research, failed to do sufficient research and enquiry 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 information because he found the applicant was not at any 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 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 am 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.  In fact, during the oral hearing the applicant admitted to this court that the interpreter did explain the procedure and he ultimately understood.

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 misleading because the Director rejected it before the first and second appeal hearing dates.

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