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

HCAL694/2017

[2018] HKCFI 1539

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 694 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 on 3 May 2013 only to be arrested on 17 May 2013.  He lodged a non-refoulement protection claim and his form was dated October 2015.  He was arrested again for taking up employment in Hong Kong whilst being a person against whom a removal order was in force.  He was sentenced to 13 months’ imprisonment in August 2013.  The Director of Immigration (“the Director”) rejected his claim on 27 January 2016 and 13 December 2016.

2.The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 9 June 2017.  The applicant filed a notice of application for leave to apply for judicial review on 28 September 2017.  He requested an oral hearing if the application was not granted on the papers.  The applicant appeared in person on 27 February 2018 having had his application for legal aid refused.

Extension of time refused

3.The applicant has failed to file his Form 86 in a timely manner within three months of the date of the adjudicator’s decision, Order 53 Rule 4.  He is, in fact, 19 days late.  His notice of application does not acknowledge the delay nor set out the reasons for the delay as it should.  His supporting affirmation does not acknowledge it nor have an explanation either and the applicant said in open court he did not know his application was late so he could offer no reason.  A friend helped him make the application and he relied on his friend.

4.I have considered the legal principles for granting an extension of time for judicial review.  The following factors are significant such as the length of delay, the explanation given for the delay, the merits of the substantive application, the prejudice to both the respondent and to the public administration and whether the application raised any questions of general public importance.

5.The delay is not insignificant, there is no reasonable excuse for the delay or any excuse at all and there is no good reason for extending time.  This is because the merits of the substantive application, after perusal of the papers and hearing the applicant, are weak.  Moreover, the application does not raise any questions of general public importance.  The extension of time sought is an abuse of process and should be refused.  Delay alone is enough to dispose of this application and I refuse leave to apply for judicial review.  However, if I am wrong, I proceed to consider the merits.

Observations

6.The basis of the applicant’s claim is that if he were to return to Bangladesh he would be harmed or killed by members of the Awami League (“AL”) because he is a member of the Bangladesh Nationalist Party (“BNP”) and also because the applicant injured an AL member and the AL filed a police report.  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 briefly here.

7.The applicant received 11 years of schooling and finished year 11 in around August 2012 when he was 25 years old.  He says there is no restriction on the age of studying in Bangladesh.  He did write “painter” on Immigration Department form but corrected this and put it down to an interpreter’s misunderstanding.  He has never worked since leaving school.  His father owns a restaurant.

8.The applicant joined the BNP in mid-2012 as a member and attended meetings and rallies.  He attended the same college as the local leader of the student wing of AL, called Alam who had asked him to join the AL but he refused.  Alam had an uncle called Kamal who was a powerful and violent local AL leader who was known to attack or even kill people.  Everyone in the area knew of and was afraid of Alam and Kamal.

9.In June 2012 Alam threatened about 20-odd students including the applicant and said if they wish to continue studying in that college they had to join the AL and abandon the BNP.  All the students refused and the local BNP leader had a dispute with Alam about leaving politics out of their education but Alam ignored him.  Alain followed this up with death threats and in fact the applicant said a student who was one year senior to him was killed by Alam after an argument; the applicant saw his dead body. After this the applicant left the college and decided to help his father in the restaurant.

10.A few months later, Alam went looking for the applicant in the restaurant and asked his father where he was and his father inadvertently told him he was scared of someone called Alam and his life was in danger if he did not abandon the BNP.

11.The second incident happened in February 2013 when AL members including Alam attacked BNP members including the applicant in their own clubhouse.  Both sides had weapons such as hockey sticks and property was damaged and people were injured.  The applicant ran away and was too scared to return home so he went to his grandfather’s house an hour away by bus.  The third incident occurred when those AL members then immediately took revenge on the applicant’s father’s restaurant and vandalised it and assaulted his father who was hospitalised with a head injury.  The police refused to register a case against the AL.

12.The fourth incident occurred in around March 2013 when the applicant returned home about three weeks after the second incident and the AL heard of his return.  They came to his house and the applicant hid.  They damaged furniture, hit his father and pushed his mother around.  The applicant came out swinging a cricket bat and he hit an AL leader called Zakir on the head injuring him critically when he defended himself against him.  The applicant then immediately fled to Dhaka by bus and hid therefore around two months before leaving Bangladesh on 30 April 2013.

13.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”).

14.The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  The adjudicator correctly set out the law and key legal principles applicable to the four grounds.  He set out relevant, up-to-date and objective Country of Origin information (“COI”) and concluded that if there was any risk to the applicant when he returned home, there was State protection available.  He also found that internal relocation was a viable option without undue hardship since the risk, if there was any, was confined to the locality of his home village.

15.The adjudicator also set out the applicant’s evidence, claim and his analysis of it. He set out a summary of the applicant’s case as stated in the non-refoulement claim form (“NCF”), his screening interview and then compared it to his oral evidence given in the appeal hearing.  The applicant’s evidence was not consistent; the evidence he gave during the appeal hearing was very different to his earlier evidence in the NCF and in the interview.  The adjudicator set out those differences and discrepancies.

16.He then gave the applicant an opportunity to clarify issues the adjudicator found implausible. The adjudicator set those out in his decision; such as why he would have started his first year of school at 13 years old.  It meant he was in class 11 at the age of 25 and the applicant said he could not provide documentary proof because his parents could not get it from the police station because the police would torture his parents to find out his whereabouts.  The adjudicator did point out that there was no need for his parents to go to a police station to get proof of school attendance.

17.During the course of the appeal hearing, the applicant gave evidence that materially conflicted with earlier evidence for example, he said he was present when AL members vandalised his father’s restaurant and assaulted his father.  Those members included Zakir and it was then that he struck Zakir over the head with a cricket bat before fleeing.  This is a very different version of events that cannot be reconciled and as the adjudicator found “his evidence in the hearing became a shambles”.  He clearly had forgotten what he had earlier stated his case to be.  There were many more examples of such inconsistencies which led the adjudicator to find the applicant had fabricated his evidence and was not a genuine claimant.

18.The adjudicator found 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.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

19.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.  The ninth ground can be dealt with first and dismissed immediately; it submits the adjudicator failed to conduct an oral hearing to deal with the appeal when plainly the opposite is true.

20.There are eight other 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.

21.In grounds 1, 2, and 4, it is submitted the adjudicator failed to consider relevant and up-to-date Country of Origin (“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 make reference to relevant and objective COI despite his finding the applicant was not a genuine claimant.  These grounds are not arguable.

22.The applicant complains he was not given sufficient time to prepare for his appeal, the appeal bundle was in English, he was confused during the appeal and felt the hearing was unfair to him.  There was an interpreter present to assist if the applicant had asked for assistance.  There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal.  Moreover, this application and its supporting affirmation were made in English which pours further doubt on this complaint.  There is no merit in this ground.

23.The applicant also 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.

24.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 it on 13 December 2016 and the date of the appeal hearing was 19 January 2017 with specific reference to that decision of the Director.

25.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.

26.In my judgement and even if I am wrong not to grant an extension of time to file this application, 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 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