Mohammed Alam Hawlader v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL536/2017

[2018] HKCFI 1305

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 536 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 by boat on 24 November 2013 only to be arrested by the police two days later.  He claimed to have left Bangladesh on 11 July 2012 and lived in Shenzhen, China for 16 months before entering Hong Kong.  He then lodged a non-refoulement protection claim which the Director of Immigration (“the Director”) rejected on 12 April 2016 and 27 January 2017.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which was rejected on 14 August 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 21 August 2017.  He requested an oral hearing which he attended in person on 17 January 2018 because his application for legal aid had been refused.

2.The basis of his claim was that if he were to return to Bangladesh he would be harmed or even killed by many enemies including two uncles because they wanted to seize the applicant’s father’s land.  There was also a third uncle because he refused to return money to the applicant that he had borrowed.  A business competitor in the bus tyre repair service who belonged to a rival political party.  A lawyer and his family because the applicant had passed through their land and trespassed.  Lastly, he feared harm from the members of the Awami League (“AL”) because he was a supporter of Jamaat-e-Islami party (“JEI”).  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 summarise it here.

3.The applicant received only a few years of primary education and was single.  From 2000 to 2005 he worked in electronic company, a tailor’s shop and a bus tyre repair business in Bangladesh.  From 2005 he worked for four years in Singapore before returning to Bangladesh to do odd jobs until 2012.  He had been a supporter of the JEI since 2000.  The applicant owned a piece of land and house in Bangladesh.

4.The applicant’s father had been left some valuable land by his own father which made his two brothers very jealous; for years they tried to force the applicant’s father to transfer that land to them.  They framed him for several criminal offences and he was arrested twice.  The applicant’s father left home in 1999 and has not been heard from since.  The two uncles then turned their attention to the applicant, threatening him to disclose his father’s whereabouts.  On one occasion his uncles and a cousin came to the land with a large group of people brandishing sticks and started a fight with the applicant who was severely beaten.  The applicant was hospitalised for over 10 days.  After this incident and after he recovered, another cousin came to his house and tried to stab the applicant with a knife.  The applicant required stitches to his hand.  The applicant did not report any of these incidents to the police because he believed the police favoured his uncles.

5.One day the applicant’s mother told him that a man called Nur Hossain came to the house and said that he had bought it.  He tried to knock down a wall but was prevented by the applicant’s mother.  As a result of all these incidents the applicant’s mother felt he was in danger and advise him to leave home so he moved to Chittagong in 2000.  After this move he had had no further contact with his two uncles and his cousins.

6.In Chittagong he borrowed money to set up a bus tyre repair business but had a business competitor nearby who was a member of the AL and a rivalry developed.  His competitor bore him a grudge because of the competing business but also because he was a supporter of the JEI.  In 2004 this competitor attacked him in his shop for his political affiliation and then had him arrested by falsely claiming he was the aggressor. The police extorted money from the applicant before he was released but he did not report them to any other higher authority.  He even had to pay the business competitor compensation.  After that his business competitor with members of the AL would extort money from him on a monthly basis and if he did not pay, they would take away tyres or even burn tyres in his shop.  On one occasion when he could not pay his competitor hit his hand with an iron rod.

7.The applicant could not take the threats, extortion and pressure any longer and went home asking a friend to take care of his tyre shop.  He went for over two months before leaving for Singapore to work as life had become too difficult in Bangladesh.  In one version of his evidence, after he left for Singapore, his friend continued to be extorted whilst running his tyre shop business and was even seriously assaulted on one occasion when he could not pay money.  In another version of his evidence his tyre shop business was shut when he went to Singapore.

8.In 2009 he returned to Bangladesh and went to Chittagong and unsuccessfully tried to reopen his business.  Then he was falsely framed for a murder by the AL when in fact members of the AL had killed that victim, a supporter of the JEI.  He heard that there was an arrest warrant issued in his name but he left Chittagong for Dhaka in 2009 and does not know what has happened to that murder charge.  In Dhaka the applicant got in a political argument with AL supporters and was beaten up badly and warned that if he remained in Bangladesh AL supporters would kill him.

9.In 2009 he tried to build a house on a piece of land that he owned but was thwarted when other villagers learnt that he was a supporter of the JEI.  He then moved back to his own house in a different village.  One day in 2009 he and some cousins cut through the land of a lawyer to get to a fair because it was a shortcut.  The applicant argued with the lawyer and his family which led to a conflict and he was beaten up badly and stabbed with a sharp stick.  The applicant was hospitalised for a day after receiving treatment in a hospital.  He did not lodge a police report against this attack.  Later he was told that the lawyer had filed a police complaint against him and he paid them to withdraw the case.  He later overheard one of the lawyer’s brothers saying that he would kill him if he saw him again.

10.Because of the threats the applicant left that village to go to another some five hours away by bus but did not feel safe living in that village because there were many political disputes.  In 2010 he returned to his home village believing that the lawyer would have forgotten him.  He had no money left and asked his maternal uncle to repay a loan to him but his uncle denied taking his money.  In an argument that uncle hit the applicant’s mother and when the applicant pushed him away, his uncle fell to the ground.  He believed his uncle would kill him rather than return his money so the applicant left the village and went to Dhaka some four hours away by scooter.

11.In Dhaka he was assaulted by roommates living with his cousin for refusing to attend an AL rally so he fled to another district some five hours away.  He then returned to his home village one year later but his uncle said if he asked him to repay the loan again he would kill him.  At the same time, the lawyer’s family continued to threaten him.  Seeing as his life was in danger the applicant decided to leave Bangladesh and in 2011 he moved again whilst his travel agent arranged for him to leave the country.  Even in that temporary accommodation the applicant was beaten by supporters of the AL for refusing to join a rally he remained there for six months before leaving Bangladesh for China on 23 April 2012.  He was deported by the Chinese Immigration in May 2012 before leaving Bangladesh for China again in July 2012.

12.The applicant says that even in Hong Kong he has been harassed and beaten by supporters of the AL.  He tried to report them to the Hong Kong police but was told by the police that they were not prepared to entertain his complaint.  On one occasion he was hospitalised after being assaulted by AL supporters who had travelled from Bangladesh to find him.  He received long-distance telephone calls from another AL supporter who told him not to come home or he would be killed.

13.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”).

14.The adjudicator conducted an oral hearing and treated the appeal as a rehearing. The adjudicator arranged two oral hearings, the second after the adjudicator received a letter from the applicant after his appeal was adjourned for deliberation which provided particulars of new evidence not considered by either the Director or the adjudicator during the first hearing.  The adjudicator’s set out the law and key legal principles applicable to the four grounds in his decision.  He set out the applicant’s evidence, claim and his analysis of it.  He set out his findings and his assessment of the applicant’s credibility.

15.He found the applicant a very poor witness, found his evidence lacked detail where material incidents were concerned and at times he was incoherent.  He found the applicant’s claims amounted to little more than a series of bold or bare assertions which also included significant contradictions that he could not explained.  The adjudicator set out why he did not believe the applicant was a genuine claimant; he set out many of the discrepancies and inconsistencies.

16.The adjudicator gave him a chance to submit new evidence but when he was questioned about this new evidence, his answers were contradictory to the letter he had written to the adjudicator.  He said during the second hearing that he had heard his friend had been killed with sticks yet in the letter which he said he dictated to a friend to write on his behalf it said his friend had been bound up, blindfolded and then shot in the head.  His explanation for the serious discrepancy was that he had forgotten the shocking details of execution style murder of his friend; an explanation the adjudicator did not accept.

17.Despite his serious allegations to the Director that he had been assaulted on several occasions by AL supporters in Hong Kong, he told the adjudicator that he did not recall being attacked by such people, he did not recall receiving any threatening long-distance telephone calls nor could he recall why he went to a hospital in Hong Kong.

18.This lead the adjudicator to conclude that the applicant was not a witness of truth and had not established even the centrepiece of his claim.  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.  He confirmed the decisions of the Director.

Leave to apply for judicial review

19.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.  The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

20.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.  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 statement.  These grounds have no merits.

21.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 inquiry 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 because he found the applicant was not a genuine claimant and not 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.  These grounds are not arguable.

22.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.  There was an interpreter present to assist if the applicant had asked for assistance.  There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal.  There is no merit in this ground when the applicant is legally represented.

23.There is a complaint 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 on 27 January 2017 which was long before the oral appeal hearing dates of 10 March 2017 and 1 August 2017.

24.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.

25.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 25^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