Al Amin Shak Mohammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL639/2017

[2018] HKCFI 1408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 639 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 from China on 14 February 2016 only to be arrested on same day.  He then lodged a non-refoulement protection claim which the Director of Immigration (“the Director”) rejected on 27 January 2017.  The applicant then lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which was rejected on 6 September 2017.  The applicant 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 February 2018.

2.On the day of the hearing the applicant was absent despite having been sent by post a notice of hearing to the address supplied by him in his application.  The applicant had also supplied two mobile telephone numbers but on the morning of the hearing, one was not connected and nobody answered the other.  As I was satisfied that the postal address was accurate, I proceeded to consider the application on the papers.

3.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 Awami League (“AL”) because of his active participation in the Bangladesh Nationalist Party (“BNP”).  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 and grew up in Dhaka, received eight years of education and a furniture apprenticeship; he ultimately opened his own furniture business in 2012.  He followed his family members into joining the BNP as a member in 2013 and actively took part in meetings and rallies.  As a result of his active participation he was noticed by members of the ruling party, the AL.  Just before the general election of January 2014 he and a very large group of 300 to 400 protesters staged a rally against the AL.  Immediately after that he received a phone call from a low-level AL member called Jummon who warned him to stop supporting the BNP.

5.A year later he was attacked by a group of 6 to 7 people who threatened to kill him if he did not stop supporting the BNP, he was beaten so badly it took him two to three hours before he could gather enough strength to get up and go home.  He then left home and moved to Mirpur to stay safe.  He worked and lived in a factory under a different identity but about three weeks later some people came and asked for him by name.  He managed to overhear the conversation and assumed they were AL members because he had no other enemies.  The applicant returned to his village and shop the following day but as soon as he appeared the local AL secretary arrived with other members and forcibly removed him from his shop.  He was told he could not do business there anymore and later that evening his shop was burnt down and all its contents destroyed.  The police refused to assist him when they heard he was a BNP supporter.

6.The AL secretary came to his house that night angry that he had made a police report but the applicant escaped through the back door and went to a neighbouring village to stay with a friend.  His parents’ home was vandalised but they were not hurt.  His parents told him it was not safe for him to return.  He then moved to Munshiganj and stayed with various friends. On about 30 May 2015, he and other BNP members arranged a memorial service to commemorate the founder of the party but it was interrupted by a group of men looking for the applicant.  The applicant was beaten badly and he was admitted into hospital for seven days.

7.The applicant then claimed he moved to a relative’s home where he recuperated and moved around for several months before he went to India at the end of December 2015 and then he left Bangladesh again on 6 February 2016 for Mainland China.

8.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”).

9.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 all four grounds.  He set out the applicant’s evidence and his analysis of it.  He was very aware of how extreme care is taken to evaluate credibility of genuine applicants who have fled their countries with few belongings and often have had little education.

10.However, the adjudicator found the versions of events differed when he looked at the non-refoulement claim form and compared it to other evidence in writing.  He asked the applicant questions relating to his membership of the BNP but his answers were so vague, evasive and inconsistent both with his own evidence elsewhere and with external country information that the adjudicator concluded that his claim of being a member of the BNP was manufactured.  He also did not believe that the applicant had attended or organised rallies or protests for the BNP.  The adjudicator gave full reasons and cited many examples to support his findings.

11.The adjudicator also did not accept the applicant’s reason for not seeking protection in India.  He found the fact that the applicant went on holiday to India, failed to seek protection whilst he was there and then returned to Bangladesh for a period of time before flying to Mainland China undermined his credibility that he was living in fear of his life or other harm at that time.

12.As a result of the adjudicator’s findings, the applicant had not proved he faced a genuine and substantial risk of being subjected to severe physical or mental torture or at risk of being killed by the AL.  As a result of his careful assessment, the adjudicator found the applicant was unsuccessful in showing he was at risk of torture, he was 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 decision of the Director.

Leave to apply for judicial review

13.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions.  The adjudicator meticulously 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.

14.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.  The decision of the TCAB states that the adjudicator explained the process to him and the applicant adopted the appeal bundle.  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.

15.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.

16.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.

17.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.

18.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