Rahaman Mohammad Fazlur v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL622/2017

[2018] HKCFI 1474

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 622 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 27 February 2016 and was permitted to remain until 13 March 2016.  He did not leave on that date and overstayed; he surrendered to the Immigration Department on 14 March 2016.  He then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 31 May 2017.  The applicant filed an appeal/petition with the Torture Claims Appeal Board (“TCAB”) on 13 June 2017.

2.The TCAB determined the appeal/petition without a hearing pursuant to Section 12 of Schedule 1A of the Immigration Ordinance Cap 115 and rejected the appeal/petition on 8 September 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 14 September 2017 and requested an oral hearing; he appeared on 22 February 2018 in person having had his application for legal aid refused.

3.The basis of his claim was that if he were to return to Bangladesh he would be harmed or killed by a loan shark called Anwar Hossain (“Anwar”) for failure to repay a loan and a man named Shaukat because he had given evidence against him in court and he had subsequently been sentenced to a term of imprisonment.  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 to summarise it here.

4.The applicant and his family all support the Bangladesh Nationalist Party (“BNP”) and he says he is a member.  In around 2005 the applicant opened an electronics shop in Dhaka which was funded by his father.  In 2010 he wanted to expand into the store next door and borrowed 2 million takas with 10% monthly interest payable from Anwar, a loan shark who was an Awami League party (“AL”) supporter closely connected to three local AL leaders.  The applicant put up his house as collateral for the loan.

5.In January 2011 he borrowed a further 2 million takas from Anwar to start a dairy farm business with his brother and paid the same monthly interest; he did not pay any principal for either loan.  In May 2011 local AL leaders came to his shop and demanded he stop attending BNP activities.  The applicant believed it was because they thought he was too influential and successful in getting voters for the BNP.  Despite owing so much money, he refused and ignored their threats.

6.In July 2011 the applicant borrowed another 1 million takas from Anwar to purchase more stocks for his electronics business.  And in the same month the same local AL leaders came to his shop and beat him with wooden sticks and rocks and destroyed the furniture in his shop.  He was hurt but did not need medical treatment.  He tried to report the assault to the police the following day but they refused to register his case because it was related to the AL party.  As his shop was badly damaged his business was partially closed.  He had no extra money to restart that business nor could the dairy business prop up his electronics business; in fact, both began to fail.  The applicant could only make sporadic monthly interest payments to Anwar but he did not chase the applicant for payment.

7.From 2011 to August 2014 the applicant received constant verbal threats from the AL but he ignored them.  By August 2014 he stopped paying Anwar completely because he was using whatever money he earned to buy stock and pay for family expenses.  So in September and October 2014, those same local AL leaders came to his shop and took away valuable stock at knifepoint when the applicant tried to stop them.  After the second occasion, the applicant went to the police but they ignored him when they heard those men were from the AL.  No BNP leader could help and his local BNP leader had left the country in 2013.  Anwar gave him an extension until the end of 2014 to repay his monthly loans.

8.When no repayments were forthcoming, Anwar and a group of about 10 men, including the local AL leaders, came to his shop with weapons and took away all his stock as compensation.  Not long after that he was then abducted and taken to a house where Anwar put a knife to his neck and he was beaten.  He managed to escape and get himself to a clinic where he was hospitalised for one night but luckily he was not seriously injured.  Once again, his local police station refused to register his complaint.

9.He then went to a friend’s home about 200 km away leaving his wife behind.  She was continually harassed in their home by Anwar’s men so in early 2015 she went to live with her father.  The applicant’s friend was also in the electronics business so he began helping him to buy electronic goods overseas; he began to travel abroad.  In mid-2015, Anwar’s men caught up with the applicant at his friend’s shop and abducted him again.  They demanded he repay his debts but as he had no money he called his elder brother for help.  His brother promised Anwar that he would take up the responsibility of repaying the loans so they released the applicant.  He returned to live with his friend.  His brother continued the dairy farm business but the applicant did not keep in contact with his brother. He heard that his brother had difficulty repaying his loan and had to close down the dairy business and leave Bangladesh in around 2016.

10.The applicant’s other problem was that in March 2015 he attended a BNP meeting with a friend and witnessed an argument between other BNP members and his friend was accidentally killed with a sword.  Four BNP members were charged with murder and the applicant was a witness summoned to court to give evidence.  Despite the families of all the defendants begging him not to give evidence, he did give evidence and on 20 August 2015 one defendant was sentenced to death, another to five years’ imprisonment whilst two others escaped from custody including Sahukar.  This last man made a call to the applicant and threatened to kill him because he gave evidence against them which sent them to prison.  He later threatened the applicant’s wife over the phone on several occasions if she did not disclose the applicant’s location.

11.The applicant was frightened Sahukar and Anwar would find him and kill him so he fled Bangladesh in February 2016. As the AL the ruling party and so powerful, internal relocation is not an option because his enemies will be able to locate him with their wide network and resources.

12.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”).

13.The adjudicator determined the appeal/petition without a hearing.  There is no absolute right to an oral hearing and he decided the appeal on the papers.  The adjudicator correctly set out the law and legal principles relevant to the four applicable grounds he considered.  The applicant had no new evidence to present in the rehearing and submitted in his grounds of appeal that the Director’s decision was unreasonable without any particulars in support.  The adjudicator then set out how he arrived at the decision not to order an oral appeal hearing.

14.He considered the principles guiding this decision set out by Cheung CJHC in ST v Betty Kwan & Ors, CACV 115/2013 at paragraphs 20-54.  With particular reference to those paragraphs, he set out what considerations he found most relevant that led him to the decision that he could dispense with an oral hearing and still adhere to a high standard of fairness which is required in dealing with torture claims.  He also considered that it was relevant that when the applicant’s claim was dealt with by the Director, he was legally represented.  He found in the name of overall fairness that the applicant had nothing useful to contribute by way of being heard if there was a hearing.

15.There were no questions of credibility or law to be addressed; the adjudicator accepted the applicant’s evidence in its entirety.  He considered the injuries he described and none reached the minimum level of severity required to show the applicant had suffered severe physical or mental ill-treatment.  The loan matter and revenge dispute concerned were purely private disputes and not on account of race, religion, nationality, membership of a particular social group or political opinion as described in the Refugee Convention for the purposes of a persecution risk.

16.The adjudicator found that even on the applicant’s own facts taken at their highest, he was unable to successfully show 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 purposes of a non-refoulement protection claim.  He confirmed the decision of the Director.

Leave to apply for judicial review

17.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.

18.There are nine 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.

19.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 objective, relevant and up-to-date COI and found State protection available as well as internal relocation a viable option without undue hardship therefore, these grounds are not arguable.

20.In ground 9, the adjudicator is accused of procedural impropriety and unfairness by failing to conduct an oral hearing.  Having read both the Directors decision and the adjudicator’s decision, although it is never a decision to be taken lightly, I agree with the adjudicator that in this case an oral hearing could be dispensed with and the necessary high standard of fairness could still be maintained.  The adjudicator went on to show that he fully understood the applicant’s case and evidence, considered the law and legal principles before finding that the applicant had not made out a case for non-refoulement protection.

21.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 the BOR 2 risk claim on 31 May 2017 at the same time as the other risk claims.

22.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.

23.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 10^th 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