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

HCAL562/2017

[2018] HKCFI 1245

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 562 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 arrived in Hong Kong illegally on 29 December 2013 only to be arrested on the same day.  He lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“Director”) on 26 January 2016 and 23 December 2016.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which was rejected on 16 February 2017.  He then filed a notice of application for leave to apply for judicial review on 29 August 2017 and requested an oral hearing which was set down for 24 January 2018.

2.The applicant appeared in person and requested an adjournment because he had made an application for legal aid on 28 November 2017 but had yet to hear the result.  I refused the adjournment because the applicant should have filed that application in August 2017 when he filed the notice of application.  He had no good excuse for filing the legal aid application three months later; he said he had to wait for his friend to have time to help him.  However, it then transpired that that was his second application for legal aid for this application; the first application was rejected because his application for leave to apply for judicial review had no merit.  He applied again but was awaiting the result of that second application.  That second application was refused on 6 February 2018.

3.The basis of his claim was that if he were to return to Bangladesh he would be harmed or killed because he was a supporter of the Bangladesh Nationalist Party (“BNP”).  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in detail in their decisions therefore, I only need to summarise it here.

4.The applicant was born in 1977, had very little formal education and farmed his family’s land for about 21 years from 1992.  He was married with three children.  He actively supported the BNP from 2006; assisting with political activities and electioneering during election periods. The applicant accused the Awami League (“AL”) party of winning the 2008 election by cheating. His problems began in 2013 when the BNP wanted the installation of a caretaker government.

5.In 2013 the applicant was confronted by two AL supporters who were wealthy and influential and several others.  They demanded he abandon the BNP and join the AL; if he did not he would not be allowed to continue to live in their village.  The applicant refused and got away from the group when they became agitated and angry.  He tried to report this to the police station but was told he could not register a complaint against the ruling party leaders.  The applicant then travelled to India in June 2013 in fear of his safety.  He stayed for one day in India and returned home.  He decided to move to Dhaka but before he moved there several incidents occurred.

6.In July 2013, the same group of AL members came to his home calling for him but he fled out the back door to a nearby village to hide from them.  When he came home his house had been ransacked but his family were safe and sound.  The applicant tried to report this to the police station but could not for the same reason given before.

7.Two weeks after that incident the applicant saw the same group of AL members come to his house but he once again escaped through the back door to a nearby village to hide from them.  He waited for his wife to call to say it was safe to come home.  In November 2013, the same group approached his home and the applicant once again escaped through the back door to a nearby village.  He returned home when his wife said they had left. Two days after this, the applicant saw one of the AL men in a market nearby who questioned him and then left.

8.However, that night his daughter warned him that she had overheard a group of people near her school mention the applicant’s name and she listened to their conversation.  She heard a plan to attack the applicant at home late that night and she recognised one of the group as one of the AL members who had visited the applicant’s home before.  The applicant’s family advised the applicant to leave immediately and he made a five-hour journey to Dhaka.  That night those AL members did come to the applicant’s house looking for him.

9.The applicant stayed with his brother in Dhaka for about three weeks before he left for China.  His wife told him that the AL members came to their home looking for the applicant at least once a month.

10.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”).

11.The adjudicator conducted an oral hearing and treated the appeal as a rehearing. She correctly set out the law and key legal principles applicable to the four grounds.  She set out the applicant’s evidence and claim and her analysis of it.  The adjudicator asked the applicant questions about his involvement with and the activities he participated in as a member of the BNP as well as questions relating to the party itself.  He did not impress with his answers.

12.The adjudicator did not believe the applicant’s evidence and case.  She did not believe that a man with limited knowledge and participation in the BNP would be targeted by a man who was an AL leader and the equivalent of a Mayor in their village.  She did not believe that an important party member like that would bother with the applicant.  She set out all the reasons for disbelieving the applicant and concluded he was not a genuine claimant.  She found nothing to show that the AL-led government was complicit in his alleged persecution and would want to kill him unless he joined the AL.

13.The adjudicator also found that if there was any risk to the applicant if he was refouled, according to the objective and up-to-date Country of Origin (“COI”) information State protection was available to him.  She found no reliable evidence that the government was unwilling or unable to afford protection to the applicant.  She found no reliable evidence that the applicant had suffered physical and/or mental suffering of the requisite severity to be defined as torture.  He was not ill-treated with an intention listed in the definition of torture in section 37U of the Immigration Ordinance.

14.The adjudicator applied the law to her findings and found the applicant had not suffered any injuries or ill-treatment, be it physical or mental that attained a minimum level of severity and had not been subjected to torture or CIDTP nor was he at any substantial risk of being subjected to that in the future.  He had not been assaulted by anyone acting in an official capacity or with the consent or acquiescence of a public official.  She concluded that the applicant had failed to establish he would face a risk of persecution, a real risk of torture or CIDTP under BOR 3, a real risk of being deprived of his right to life under BOR 2 and a real risk of torture as defined by the Immigration Ordinance if he is refouled to Bangladesh.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

15.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.  She analysed the material, claim and evidence carefully.  The applicant’s complaints against her and the procedure undertaken are not made out. I find no substance in the grounds of this application.

16.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 her decision. There are no particulars here to illustrate where she 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.

17.In grounds 1, 2, and 4 it is submitted the adjudicator failed to consider relevant and up-to-date 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.  The adjudicator considered COI material and State protection; she cited his references clearly.  She had no reason to go into great detail considering the reason she dismissed the applicant’s appeal yet she did.  These grounds are not arguable.

18.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.  The adjudicator did not believe the applicant was a witness of truth; not a genuine claimant.  She had no need to go on to evaluate or make such a finding of fact in relation to any violations of human rights in Bangladesh under such circumstances.  There is no merit in this ground.

19.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.  There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal.

20.There is also an allegation that the Director did not assess or screen the applicant’s BOR 2 risk claim before the TCAB rejected his appeal of that risk claim.  This is an inaccurate allegation when the Director considered and refused the applicant’s BOR 2 risk claim on 23 December 2016 before his oral appeal hearing of 24 January 2017.

21.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.

22.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 11^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