Md Anjur Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL616/2017

[2018] HKCFI 1536

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 616 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 left Dhaka for India by bus on 22 June 2006 and then flew to Nepal on the same day.  He returned to Bangladesh three days later.  He then flew to China on 30 June 2006, landing in Kunming.  He arrived in Shenzhen on 1 July 2006 and entered Hong Kong by bus on 3 July 2006 and was permitted to remain until 17 July but overstayed from 18 July 2006.  He was arrested by the police on 9 March 2008, nearly two years later.  After his arrest he lodged a torture claim.  Before his arrest he had submitted a refugee application with the UNHCR Hong Kong office in 2006 but it was rejected at the end of 2006.

2.The applicant’s torture claim was dealt with under the Unified Screening Mechanism and was assessed on all applicable grounds by the Director of Immigration (“the Director”); it was rejected on 10 July 2014 and 5 May 2017.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 1 September 2017.  He filed a notice of application for leave to apply for judicial review on 13 September 2017 and requested an oral hearing which was set down for 7 March 2018.  The applicant appeared in person after his legal aid application was refused.

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 Bangladesh Nationalist party (“BNP”) because he had switched his allegiance to another party, Bikolopo Dhara Bangladesh (“BDB”).  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 has lived in the same village all his life, has had eight years of education and is a self-employed trader dealing in rice, wheat, lentils and peas.  When he was about 20 in 1998 he joined the BNP who were in power; he was quite active in campaigning and motivating voters. He worked as a campaign secretary.  In about 2005 he noticed that members of the BNP would torture ordinary citizens who did not support their party and it went against his conscience.  When senior members asked the applicant to participate in such nefarious activities he refused which made them angry and he lost favour.  He decided to drop out and spoke to other campaign secretaries who felt the same.

5.In early June 2006 a group of campaign secretaries including the applicant submitted their applications to quit the BNP party and were warned against it; they were advised it would be a great loss to the party.  They were also told their safety could not be guaranteed.

6.The group then joined the opposition BDB party who they felt were working for the benefit of the Bangladeshi people and they all went to an induction meeting on 8 June 2006.  On the way home after the meeting the applicant was attacked by four or five BNP members of whom he recognised three.  They told him he deserved to die for switching political allegiance and he was hit over the head with a hockey stick and his finger was cut with a chopper.  Some neighbours came out when they heard him shout and the BNP members ran away.  A doctor came to bandage his head and stitch his finger.

7.That evening his brother took him to a friend’s house to hide which was lucky because those BNP members came back to find him and threatened to hurt him again.  They threatened to find him anywhere in Bangladesh and kill him.  The applicant decided he was not safe in that area and stayed overnight in his friend’s home before he took a 5-hour bus journey to Dhaka the next day.  He believed that he would not be safe anywhere in Bangladesh so he applied for a passport and eventually left Bangladesh in June 2006.

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 appeal and treated the appeal as a rehearing.  The applicant elected to give evidence and answer questions.  The adjudicator correctly set out the law and key legal principles applicable to the four grounds.  He analysed the applicant’s evidence and set out the issues.

10.The adjudicator highlighted the basis of the applicant’s claim was his fear of BNP members seeking revenge because he left the powerful BNP to join the BDB in 2006.  However, from the Director’s decision it can be seen that the Country of Origin information (“COI”) shows that the Awami League party is now in power in Bangladesh since the BNP lost the general election in 2008.  The BNP boycotted the general election of 2014 and has no seats now in the Bangladeshi government.  Moreover, from news dated August 2011 and March 2014 the BNP and BDB have agreed in principle to wage a united movement to contest the next general election together against the Awami League.  The two parties are also going to protest jointly to demand a free and fair election under a caretaker government.

11.This does dilute and greatly reduce the risk of harm feared by the applicant because the two parties are now working together and not in opposition to each other.  His argument that the BNP are powerful and have influence countrywide cannot stand since they lost the general election in 2008 and have been in decline since with no seats at all now.

12.On the applicant’s own facts, the adjudicator found that there was no evidence the four or five BNP members who attacked him were acting on behalf of the State or in an official capacity.  The applicant made no report to the police.  The injuries he suffered were not so serious as to be defined as torture or CIDTP, he was not hospitalised and took a bus the next day.  11 years has lapsed since he left Bangladesh and the political landscape has completely changed.

13.The adjudicator found the applicant had fallen short of fulfilling the requirements to 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.  He had not been seriously ill treated or tortured by any member of the BNP.  He was not the target of the State.  There was no evidence to show there was a substantial risk of being subjected to any ill-treatment.  The Director came to the same conclusions in his decision; the adjudicator 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.  I find the Director’s and adjudicator’s decision to be without fault.  They analysed material, claims and evidence carefully.  The applicant’s grounds and complaints are not made out.  I find no substance in the grounds of this application; they are not substantiated.

15.After a reading of the applicant’s affirmation, it would appear that the applicant has the following grounds against both the decision-makers.  There are no particulars in his affirmation for any grounds.

16.The first ground is that there was a failure by the adjudicator to give the applicant an opportunity to clarify inconsistencies and exaggerations before making a finding against his credibility.  There is no merit in this ground because the adjudicator did not make a finding against his credibility.

17.In the first ground the decision-makers are accused of failing to conduct sufficient enquiry into relevant COI.  The Director is accused of failing to inform the applicant that COI would be considered during the assessment of his claim which is an odd submission considering the applicant had legal representation at the time.  The Director is also accused of cherry picking COI but there are no particulars so I find no merit in this ground against either decision-maker.

18.In the third ground the decision-makers are said to have failed to consider the extended concept of State acquiescence.  The applicant did not report the assault to the police or any authority in Bangladesh.  This is not a case where the 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 is no merit in this ground.

19.In the fourth ground the decision-makers are accused of unreasonableness in assessing his claim. In that paragraph he refers to being attacked twice and receiving serious injuries for which he was hospitalised.  It is clear from both the decisions that there is reference to only one incident of assault and it did not result in hospitalisation.  I do not believe both decision-makers have made a mistake in his evidence.  He also makes reference to his persecution risk coming from his political views and membership with BDB.  The adjudicator has dealt with the changes in Bangladesh that have happened over the 12 years since the applicant has left in the political landscape which have led him to conclude his fear is not well-founded.  There is no merit in this ground.

20.In his oral hearing the applicant made additional submissions; he said his enemies are still looking for him and only six weeks ago he was told they went to his home and tortured his mother and brother.  This being new evidence not put before either the adjudicator or the Director, I did not take this into account.

21.I do not find any ground that shows there was an error of law 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.

22.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 17^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