Zzaman Md Asadu v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL638/2017

[2018] HKCFI 1407

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 638 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 the Applicant being absent 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 3 September 2013 only to be arrested on 1 October 2013.  He lodged a non-refoulement protection claim which the Director of Immigration (“the Director”) rejected on 27 November 2015 and 8 June 2017.  The applicant then lodged an appeal with the Torture Claims Appeal Board (“TCAB”) which rejected it on 1 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.

2.A notice of hearing informing the applicant of the hearing date of 8 February 2018 was posted to him on 5 December 2017 at the address supplied by the applicant.  The applicant did not appear on the morning of the hearing and I note he would have appeared in person because his application for legal aid had been refused on 29 December 2017.  There was an attempt to call the applicant’s mobile phone number supplied by him but the number was not registered.  I then considered his application on the papers.

3.The basis of the applicant’s claim is that if he were to return to Bangladesh he would be harmed or even killed by members of the Awami League party (“AL”) because he had refused to quit the Bangladesh Jamaat-e-Islami party (“BJI”).  The AL party then made a false allegation against him which has resulted in an outstanding arrest warrant.  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.

4.The applicant was born in 1982, had nine years of education and then assisted his father in his business. His father then became ill and died at the beginning of 2008.  After that the applicant decided to stand for election as a member of the BJI in June 2008 for a position previously held by his father.  He won the election and defeated an AL member.  After his election, the market committee where his shop premises were, closed all shops owned by AL supporters in the market.

5.However, in early 2009 the AL came into power and they took revenge on the market committee and the applicant.  All shops owned by members of BJI were vandalised and locked up.  The police promised to approach the village chairman who was a member of the AL on behalf of the market owners but no action was taken.

6.In late 2009, in an altercation between about 200 BJI members and 150 AL members, the AL demanded that the applicant and his fellow BJI supporters quit the BJI and join the AL.  When they refused, a fight broke out but the applicant managed to run away unharmed and hide in a village about five miles from home.  His family told him that the police had come to his home that evening.  He stayed with his aunt for about 10 days before returning home.

7.About two weeks after that first altercation the applicant and others were attacked by a group of 8 to 10 AL members.  During the attack, part of the applicant left index finger was chopped off with a machete.  He then fled the scene and went to hospital with other injured BJI members.  The applicant remained in hospital for four to five days and it was there he was informed that the police had issued an arrest warrant for him because AL members had filed a complaint of “fighting a public place” against him.  Immediately after he left hospital he was forced to hide from the police.

8.He then decided to apply for a passport to leave Bangladesh because his life was in danger.  He lived in India for about three years with an uncle whilst his passport was processed and finally issued in October 2012.  His uncle suggested he travel to Hong Kong to seek protection.  He went to Mainland China first and lived there for about five months trying to find a way to enter Hong Kong.  He paid an agent to take him to Hong Kong by boat.

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 adjudicator currently set out the law and key legal principles applicable to all four grounds.  He set out the applicant’s evidence and claim as well as his analysis of it.  He considered the applicant’s credibility and found that he was not credible nor a genuine claimant.

11.The adjudicator set out in detail why he did not find the applicant credible; he set out the inconsistencies and discrepancies he found pertinent.  The preliminary information report submitted by the applicant proved to be so inconsistent as did the evidence the applicant gave surrounding this document that the adjudicator found the document undermined the applicant’s account and credibility.  He found that answers given to his questions by the applicant during the appeal hearing were obvious fabrications.  He found no evidence that supported the applicant’s alleged connection to BJI.

12.The adjudicator also considered that even if there was any truth in the applicant’s evidence that he was connected to the BJI, there was no suggestion he had been involved with their activities since 2009, nearly 10 years ago.  The adjudicator found that the applicant’s own conduct suggested that he was not in fear of serious harm from local supporters of AL or from being arrested.  Even though he lived in India for over two years, on his own account he would return to his home in Bangladesh to visit his family every two to three months.  If he had any genuine fear he would not have returned.  The same logic applies to the fact that he did not lodge a claim as soon as he arrived in Hong Kong but only after he was arrested.

13.As a result of his finding on credibility, the adjudicator concluded 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 the purpose of a non-refoulement protection claim.  He confirmed the decisions of the Director.

Leave to apply for judicial review

14.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions.  The adjudicator analysed the material, claim and evidence and validated his findings.  The applicant’s complaints against him and the procedure undertaken are not made out.  He puts forward three grounds and I find them all to be without merit and substance.

15.In the first ground, the applicant suggests that the appeal bundle was served before the oral hearing and because it was in English, he could not afford to have it translated.  This meant he arrived at the appeal hearing confused and without a full understanding of the proceedings.  However, there is no record of any complaint by the applicant of being confused or any request by the applicant for the assistance of the interpreter to interpret his previous evidence, statements and the Director’s submissions that was in the appeal bundle.  Moreover, he made this application and affirmation in English which casts more doubt on this ground.  I find no merit in this ground.

16.In the applicant’s second ground he 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.The third ground is a complaint that the adjudicator relied on Country of Origin information that was not officially recognised, hearsay and out-of-date.  However, there are no particulars supplied by the applicant to support this ground.  What information he did consider relevant in spite of his finding against the applicant’s credibility, was clearly relevant, up-to-date and objective.  I find no merit in this ground.

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