Hossain Ikram S.M. v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL567/2017

[2018] HKCFI 1405

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 567 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 arrived in Hong Kong on 23 July 2007 and was permitted to remain for seven days.  He did not leave as required and overstayed until he was arrested on 8 October 2008 for the offence of dealing with goods to which the Dutiable Commodities Ordinance applied.  After he served a term of imprisonment he then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 1 June 2015 and 6 June 2017.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 18 August 2017.  The applicant filed a notice of application of leave to apply for judicial review on 31 August 2017.

2.The applicant requested an oral hearing which was set down for 8 February 2018 and he appeared in person.  He did request an adjournment to wait for a decision from the Legal Aid Department as to whether they would represent him but he did not apply for legal aid until 29 November 2017, some three months after he filed this application.  I refused the request to adjourn because he had no good reason for such a late application; I suspect it was to delay proceedings further.  The applicant’s application for legal aid was refused on 9 February 2018, the day after the hearing.

3.The basis of his claim was that if he were to return to Bangladesh he would be harmed or killed by Baba and his gang because he knew they had killed his business partner Ripon.  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 need summarise it here.

4.The applicant was born in 1985, had 12 years of education and in 2005 he and his friend Ripon started a business together and were successful; turning a profit each month.  One day in 2006 they were both kidnapped by four masked men, detained in a room for about eight hours until their families had paid a ransom for their release. The kidnappers had demanded 500,000 takas but their families had only paid 300,000 takas. The two men were released but told they would be contacted again for the balance of the ransom money.  The applicant did not report this abduction to the police because they had been warned by the kidnappers that they would be killed if they made a report.

5.Two weeks later both men were approached by two other men and warned that their “debt” had not been paid.  He was referring to the ransom money.  He gave them time to pay the balance.  On 16^th August the two men were on the way to buy garments and had 1 million takas on them when they were approached again by the kidnappers, one of them said he was a follower of a member of Parliament of the BNP and Baba was his big brother.  They were taken to meet Baba who demanded the balance of the ransom.

6.One of Barbers men tried to grab the bag containing the 1 million takas but Ripon tried to fight them off and refused to hand it over.  The applicant urged him to give them all the money. Ripon refused even when Baba pulled out a gun.  The men began to beat Ripon and Baba hit him with an iron rod over the head.  The applicant realised that he would be next so he managed to escape and run away.  He lost them in the crowded market and went to hide at a friend’s home.

7.Two days later the applicant tried to lodge a complaint at the police station but the police refused to take down his complaint.  The following day Ripon was found dead in the canal. The police still refused to let him file a complaint.  The applicant’s family received threatening phone calls from Baba’s men who requested the applicant to meet them.  They said if they had to find him they would kill him. The applicant then left home and hid in various villages for the next 12 months before he left Bangladesh.

8.He received information that Baba and his men were still looking for him near his home and shop so he went to India in June 2007 but found it hard to survive there because he had no relatives.  He returned to Bangladesh for about six weeks before leaving Bangladesh again for Hong Kong.  He says he has not contacted his family since 2011 because apparently they have moved away from home.

9.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”).

10.The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  The applicant elected not to answer questions or give evidence.  The adjudicator correctly set out the law and key legal principles applicable to all four grounds.  He set out the applicant’s evidence and claim and his analysis of it.

11.The adjudicator did not believe that the applicant was a genuine claimant.  He based this finding on the fact that the applicant arrived in Hong Kong, overstayed and did not lodge a claim until after he was arrested and served a sentence in prison. By then it was more than 15 months after he arrived in Hong Kong.  The adjudicator did not believe his explanation that some other Bangladeshi men had told him that he did not need to lodge a claim until after he was arrested.  This was a different explanation to the one furnished to the Immigration Department.  This conduct severely affected his credibility, the adjudicator did not believe that he was in genuine fear for his own safety which was why he left Bangladesh.  If he had been, he would have not delayed in submitting a claim.

12.The adjudicator rejected his claim on the grounds of credibility but went on to consider the claim on the basis that the applicant’s evidence was true.  He found that even on the applicant’s own facts he had not made out a case for non-refoulement protection.  The harm that he sustained from the kidnappers did not attain a minimum level of severity to be defined as serious harm and ill-treatment.  After Ripon’s dead body had been found the applicant was able to avoid the kidnappers even though he stayed at home for another week.  He was told that they watched his house after he went into hiding from August 2006.  The applicant stayed in Bangladesh for another 11 months before leaving for Hong Kong and did not encounter Baba or his men during that time.

13.The adjudicator found that even if there was a risk from Baba it was low and localised.  The adjudicator considered relevant, up-to-date and objective Country of Origin information (“COI”) and found that even if the applicant was at risk there was adequate State protection available to him.  He also found that internal relocation was a viable option which would even further lower or negate the perceived risk.  The fact that the applicant had lived peacefully for another 11 months before leaving Bangladesh outside of his village proved this point.

14.The adjudicator found when he applied the applicant’s evidence to all four grounds, the applicant had not made out a case for non-refoulement protection.  On the applicant’s own facts, he was not able to establish within the definition of torture under section 37U(1) of the Immigration Ordinance that severe pain or suffering had been inflicted on him by anyone in that there was a real risk of torture by the same people if he returned to Bangladesh.  The adjudicator found that on the applicant’s claim, on his own facts, he had failed to invoke the protection of BOR 2 or BOR 3.  Lastly, the adjudicator found his fear of ill-treatment did not fall within the definition of persecution, was not well-founded and his persecution risk claim failed.  The adjudicator confirmed the decisions 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.  The applicant’s complaints against him 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 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.

17.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 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 consider COI despite his finding the applicant not credible.  He considered information that was up-to-date, relevant and objective in determining State protection availability and the viability of internal relocation.  These grounds are not arguable.

18.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.  Moreover, this application and its supporting affirmation were made in English which pours further doubt on this complaint.  There is no merit in this ground.

19.The applicant also criticises the adjudicator for doubting his credibility when he answered all of his questions honestly.  Recently the Court of Appeal in Re Lakhwinder Singh [2018] HKCA 246 at (13) said that;

“Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers. Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh even in absence of any legal error.”

This adjudicator gave full reasons for that finding, the TCAB had a rational basis to find against the credibility of the applicant.  There are no proper grounds for interfering with such a finding. There is no merit in this ground.

20.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 6 June 2017 and the adjudicator rejected his appeal on 18 August 2017 with specific reference to that decision of the Director.

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, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, paras 14-17. I refuse leave to apply for judicial review.

Dated 3^rd day of July 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