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

HCAL632/2017

[2018] HKCFI 1406

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 632 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 illegally entered Hong Kong on 22 October 2013 only to be arrested on the same day.  He then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 29 December 2015 and 20 January 2017.  The applicant then lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which was rejected on 15 September 2017.  He then filed a notice of application for leave to apply for judicial review on 18 September 2017 and requested an oral hearing which was set down for 6 April 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 Bangladesh Nationalist Party (“BNP”) because of his political affiliation to the Awami League (“AL”).  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in their decisions therefore, I only need summarise it here.

3.The applicant had seven years of education, is single and assisted his family in farming their land.  All his family are supporters of the AL and his father was a prominent member.  The applicant became a member of the AL in 2011 and was active in electioneering and party politics.  His problems began in 2013 when his father was ordered by some BNP members to switch allegiance to the BNP.  He refused and they threatened him as well as his family.  A month later some BNP members forced their way into the applicant’s family home brandishing sticks.  They demanded the family join the BNP and insulted them all as well as threatened to kill the whole family if they did not do as told.

4.The father did report the second incident to the police but the police refused to register his complaint.  His father assumed the police had been bribed by the BNP members.  The entire family was afraid they would carry out their threats so they decided to leave the village.  Some, including the applicant, moved to a relative’s home in Shariatpur and some moved to Dhaka.  They all returned home after about a month when they thought the matter hadcalmed down.

5.On that first night home the applicant went to stay with a friend and during the night he heard a very loud sound.  He ran out to find that someone had thrown a bomb at his family home and it had burnt down.  He could not find any family members nor could he approach the house because of the flames.  He ran away in case another bomb was thrown at him.  The applicant has had no contact with any family member since and does not know if they are alive or dead.  He is sure that the bomb was thrown by the BNP so he did not return home in case they found him.

6.A friend told the applicant to stay at his place in Dhaka where he went and hid for nearly two weeks.  His friend then suggested he leave the country and go to Hong Kong via China.  His friend accompanied him to China but not into Hong Kong.

7.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”).

8.The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  The applicant had extra information to submit in the oral hearing and told the adjudicator that he could not return home because the problem still existed and recently he had contacted a village friend on Facebook who told him that he could not go back because he would be killed.  When asked why he said that by the adjudicator the applicant answered that his friend knew everything and he himself is in hospital with his arms and legs broken.  In his decision, the adjudicator set out the law and key legal principles applicable to the four grounds.  He set out the applicant’s evidence, claim and his analysis of it.

9.The adjudicator did not believe that the applicant was a genuine claimant.  He did not believe that he himself was a target; according to his own evidence, his father was the target. He himself had not been personally threatened or personally injured or tortured.  He was only a supporter who held no position of rank; there was no reason he was important to the opposition party.

10.The adjudicator also did not believe his evidence relating to the night his family home was bombed.  The adjudicator took the view that if this had happened the applicant would not have immediately run away from his village in the middle of the night without trying to locate his family members.  He did not even try to determine if his family had escaped from the house. He made no attempt to find them that night or make enquiries afterwards.  The adjudicator took the view that this was not credible.  He did look at Country of Origin information (“COI”) that was objective and concluded that if the applicant was at any risk there was State protection available to him if he returned home.  He also found it a viable option for the applicant to relocate internally without undue hardship.

11.The adjudicator found the applicant was unable 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 enemies he identifies if he returned to Bangladesh.  The adjudicator found that the applicant’s claim had failed to invoke the protection of either BOR 2 or BOR 3.  Lastly, the adjudicator found his fear of ill-treatment was not well-founded within the definition of persecution, his persecution risk claim failed.  The applicant had not been able to make out a case for non-refoulement protection.  The adjudicator confirmed the decisions of the Director.

Leave to apply for judicial review

12.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.

13.There are nine grounds in this affirmation and all contain no particulars.  The ninth ground is struck out because it submits the adjudicator failed to arrange an oral appeal hearing when the opposite is true.  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.

14.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.  These grounds are not arguable.

15.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.

16.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.

17.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 20 January 2017 which was long before the oral appeal hearing of 26 July 2017.

18.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.

19.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