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

HCAL695/2017

[2018] HKCFI 1476

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 695 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 entered Hong Kong illegally by boat on 16 June 2014 only to be arrested by the police on the same day.  He then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 26 April 2016 and 30 June 2017.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 26 September 2017.  He then filed a notice of application for leave to apply for judicial review on 29 September 2017 and requested an oral hearing; he appeared in person on 22 February 2018 when his legal aid application was refused.

2.The basis of his claim was that he would be harmed or even killed by some members of the Awami League (“AL”) because he was a member of the Bangladesh Nationalist Party (“BNP”).  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in their decisions therefore, I only intend summarise it here.

3.The applicant is married with two daughters in Bangladesh and has been a wooden furniture maker all his working life.  He has supported the BNP and became a member in 1997; he attends party meetings, rallies and helps during elections.  Since 2008 BNP members would often gather in his furniture shop which would annoy local AL members.  One day in 2013 the BNP called a strike against the AL by way of closing all local shops and businesses.  The applicant closed his shop and was there alone but ran away when he saw some AL members approach his shop carrying AL banners in a large crowd.  He returned to find his shop ransacked and his stock damaged.

4.His neighbours told him that the AL members had shouted threats to kill him.  The applicant then decided to flee to avoid danger and went to Dhaka to stay with his friend.  This was an eight-hour bus journey from his village.  He left after two weeks when he heard that there were AL people looking for him there.  He moved to another area in Dhaka where he lived for 12 days until he heard that the AL people had threatened his parents; they told them to bring him home or else they would kill him if they found him.  He decided to return home because he thought the situation might have improved.

5.Two days after he returned a local BNP leader was murdered and the applicant believed he was murdered by the AL.  The BNP held a large protest rally but they were attacked by AL members with weapons; the AL were escorted by members of the police.  The applicant fled from the rally because he was worried the police might open fire at the rally.  When he ran home, his parents advised him to leave home again.  He left the village and went to stay with a friend; his mother later told him that his brother and two friends were assaulted by the AL; his brother seriously injured. The applicant stayed away for two months before moving on twice and eventually left Bangladesh on 16 May 2014.

6.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”).

7.The adjudicator conducted an oral hearing and treated the hearing as a de novo hearing/rehearing.  The applicant elected to answer questions.  Both the Director and the adjudicator correctly set out the law and key legal principles applicable to the four grounds.  The adjudicator repeated the applicants evidence and highlighted the following facts; he had never been injured by any AL member, never witnessed his shop or stock being damaged and the death threat his neighbour told him about was hearsay evidence that had no other evidence to support it.  The adjudicator noted that evidence of the injuries of his brothers and friends were hearsay evidence.  The murder of the BNP leader was speculative.

8.The adjudicator noted he was not the specific target of the AL when he ran away during the BNP protest rally.  His evidence here was inconsistent to his non-refoulement claim.  In that form he said the AL members outnumbered the BNP rally.  During the appeal hearing he told the adjudicator that there were about 150 BNP members and several AL members.  Then he said he did not count how many AL members but more than 100.  He could not explain why he had said there were several.  His description of the rally and how he escaped led the adjudicator to doubt his evidence.

9.The adjudicator went on to find that 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 for the purpose of a non-refoulement protection claim.  Even on the applicant’s own facts, according to the highlighted facts above, he was not able to establish a successful claim.  Even if what he had said was true, the adjudicator considered relevant, up-to-date and objective Country of Origin information (“COI”) and found that there was available State protection available to the applicant if he was at risk upon his return to Bangladesh.  There were also viable options for internal relocation such as Dhaka.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

10.I have considered with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions.  I find both the decision-makers’ decisions to be without fault.  In the applicant’s supporting affirmation there are grounds directed at both the Director and the adjudicator however, there are no particulars in any of the grounds.  I find no substance in the grounds of this application.

11.The grounds are not so clear or coherent but from what I can summarise, in ground 1, he submits both decision-makers failed to give him an opportunity to explain any discrepancies before making a finding against him on credibility, bearing in mind he was acting in person.  Firstly, the applicant was not acting in person before the Director; he was legally represented through the duty lawyer scheme.  Secondly, the adjudicator did give him opportunities to explain discrepancies and that is reflected in her decision.  There is no merit in this ground.

12.In ground 2 against the adjudicator of the TCAB only, she failed to properly consider and fairly deal with COI information.  There are no particulars to support this ground.  There is no merit in this ground.

13.In ground 3 against both decision-makers they are accused of irrationality; a failure to consider the extended concept of State acquiescence.  The applicant did not rely on the concept of extended state acquiescence.  He did not make a report to the police or any authority.  In any event, there is no evidence that this is a case where state authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill-treatment were being committed by non-State officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-state officials or private persons.  There are no merits in this ground.

14.In the fourth ground against both decision-makers they are accused of unreasonableness; the assessment of his claim under all applicable grounds “was premised on false logic regarding the intention” of his enemies.  I have tried my best to decipher this ground but without particulars I am unable to work out the accusation of unreasonableness.

15.I have tried my best to decipher all the grounds in the applicant’s affirmation and I do not find any that show there was an error of law made by the adjudicator or the Director.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, 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