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

HCAL570/2017

[2018] HKCFI 1246

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 570 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 17 July 2014 only to be arrested on the same day.  He lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 15 April 2016 and 16 June 2017.  The applicant then lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which was rejected on 18 August 2017.  The applicant filed a notice of application for leave to apply for judicial review on 31 August 2017and requested an oral hearing which was set down for 24 January 2018.  The applicant appeared in person having had his application for legal aid refused.

2.The basis of his fear was that if he were to return to Bangladesh he would be harmed or killed by members of the Awami League (“AL”) because of his active participation in the Bangladesh Nationalist Party (“BNP”).  He was threatened on numerous occasions and once physically attacked between late 2012 and mid-2014 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.

3.The applicant was born in Shariatpur, is single and uneducated.  From late 2012 he worked as a tailor in Dhaka.  His family are all supporters of the BNP although not members.  The applicant says he joined as a member when he was 19 in 2010 and has since been an active participant in electioneering and campaigning in his home village.  At the end of 2012 the applicant was stopped by a group of nine unarmed AL members, three he recognised, and was told to leave the BNP and join the AL.  He refused but was not physically attacked but verbally threatened with death or face being framed for crimes he did not commit.  The police did not entertain his report because the AL was the ruling party.

4.Six days later he was once again surrounded by a group of AL who invited him to join the AL but did not threaten or attack him.  The BNP boycotted the January 2014 elections and the applicant tried hard to persuade voters to boycott it.  In February 2014 after the AL won the elections he was stopped by a group of AL supporters who again threatened to kill him if he did not switch political allegiance to the AL.  He tried to report this to the police but was told that the police had instructions from the AL to frame him with false criminal charges.  In April 2014 he was suddenly surrounded and assaulted by a group of AL members brandishing wooden sticks and hockey sticks.  He was threatened again.  He received bruising and was taken to a hospital for in treatment and released later that same day.  The police once again refused to entertain his complaint.

5.After this first physical attack the applicant hid at home and then decided he had to leave Bangladesh because the pressure of the AL targeting him was too much.  He paid 450,000 takas to an agent to arrange his travel to China and he left on 15 July 2014.

6.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”).

7.The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles applicable to the four grounds.  He set out the applicant’s evidence and claim as well as the burden of proof and standard of proof in such claims.  He set out the applicant’s evidence, documentary evidence, oral evidence and his analysis of it, including his credibility.

8.The adjudicator did not believe the applicant’s evidence; finding him inconsistent and his case implausible.  He set out in detail all of the reasons that led to this finding.  There was a careful analysis of the applicant’s evidence which led him to conclude the applicant was not a genuine claimant which meant that the applicant had not made out a case for non-refoulement protection.  The adjudicator was not persuaded that the applicant was at any risk of ill-treatment by his enemies in the AL if he returned home to Bangladesh.

9.As a result of his careful assessment, the adjudicator found the applicant was unsuccessful in showing 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

10.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the adjudicator’s decision to be without fault.  He analysed the 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.

11.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 his decision. There are no particulars here to illustrate where he 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.

12.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; he cited his references.  He had no reason to go into great detail considering the reason he dismissed the applicant’s appeal yet he did.  These grounds are not arguable.

13.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.  He 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.

14.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 and he confirmed during the oral hearing to this court that he had the procedure of the hearing explained to him by the interpreter at the appeal.  There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal.

15.There is a complaint that the Director did not assess the applicant’s BOR 2 risk claim before it was dealt with by the adjudicator of the TCAB.  This is misleading when clearly the Director’s decision was made before the determination of the TCAB and it is referred to in the adjudicator’s decision.

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 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