Islam Hossain v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL693/2017

[2018] HKCFI 1582

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 693 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 2 July 2014 only to be arrested on the same day.  He then lodged a non-refoulement protection claim which was dismissed by the Director of Immigration (“the Director”) on 13 May 2016 and 30 June 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which was dismissed on 8 September 2017.  He then filed a notice of application for leave to apply for judicial review on 28 September 2017 and requested an oral hearing which was heard on 2 March 2018.  The applicant did apply for an adjournment to await for his legal aid application result but was refused because he had made a very tardy application and I viewed it as an abuse of process; an attempt to delay the proceedings.

2.The basis of his claim was that if he were to return to Bangladesh he would be harmed or even killed by Awami League (“AL”) members because he was a member of the Bangladesh Nationalist Party (“BNP”) and/or an extortionist named Hanif had threatened to harm him if he failed to pay him money as demanded.  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 here.

3.The applicant was born in 1987, is married with two children and since 1994 worked his family farm land.  In early 2013 the applicant joined the BNP as a supporter and at about the same time, some AL members asked him to join their party but he refused.  They repeated the invitation and every time he refused, they threatened to beat him up or kill him.  He personally knew a man in the next village who was ranked in the AL who asked him to join their party and he too said members of the AL would beat or kill him when he refused his request.  He later ran for a chairman election in the Union Council in 2016.  Despite these threats, the applicant never reported them to the police because he thought it would be futile.

4.However, as the threats became more direct, he became afraid and decided to flee to another district to stay with his sister-in-law.  He stayed away from any political activities for about eight months until early 2014.  He also did not encounter Hanif who was the extortionist from the adjacent village who once asked him for money and the applicant paid it but despite this he still threatened to harm him.  After this, the applicant refused to pay him but has not come to any harm.  Hanif had no connection to the AL members the applicant feared.

5.In around early 2014 the applicant moved to Dhaka and stayed with a cousin and once again, did not join in any BNP party activities.  He continues to live in fear and under pressure because there were many AL members in Dhaka and from the media he learnt that supporters of the BNP were constantly under attack and even killed in Bangladesh.  After a week in Dhaka he met an agent who told him he would get protection in Hong Kong so he decided to make arrangements to travel there.  He left on 21 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 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 noted a large part of the applicant’s evidence was hearsay which is not in itself inadmissible, but the weight which can be given to such evidence is, because of its nature, greatly reduced.  It does not prove the truth of facts asserted because of its nature.  Essentially, the only direct evidence from the applicant was that he had been verbally threatened a few times but never attacked by AL members.

8.The adjudicator applied the applicant’s evidence to all four grounds and found he had not made out a case for non-refoulement protection.  On his own facts, he was not able to establish within the definition of torture under Section 37U(1) of the Immigration Ordinance that severe pain or suffering had been inflicted on him by members of the AL and that there was a real risk of torture by any members of the AL if he returned to Bangladesh.  That section required severe pain and suffering of which there was none whatsoever.  There was no evidence of any involvement of a public official or person acting in an official capacity nor any evidence that their conduct was consented to or acquiesced in by any public official.  The applicant had not reported any threat to the police and his evidence that the police would not protect him was speculation.  He was not a target of the State. The adjudicator went on to refer to relevant, up-to-date and objective Country of Origin information and found that even if the applicant was at any risk, there was State protection available.  The applicant’s torture claim failed.

9.On his own facts, the applicant was unable to invoke the protection of BOR 2 or BOR 3.  To invoke BOR 3, the applicant had to prove that he had suffered ill-treatment, whether physical or mental, that attained a minimum level of severity which he had not, according to his own evidence.  The applicant could not show he faced a genuine and substantial risk of being subjected to ill-treatment if he returned to Bangladesh nor could he show any of his rights under BOR 2 being violated.

10.There was no evidence to show that the applicant was in fear of being subjected to persecution on account of race, religion, nationality, membership of a particular social group or political opinion.  The adjudicator found his fear of ill-treatment did not fall within the definition of persecution; his persecution risk claim failed.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

11.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.

12.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.

13.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.  These grounds are not arguable.

14.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.

15.The applicant also criticises the adjudicator for doubting his credibility when he answered all of his questions honestly.  This ground is misleading when the adjudicator did not make any finding as to credibility; he assessed the applicant’s claim on the basis that he was telling the truth.  There is no merit in this ground.

16.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 30 June 2017 and the date of the appeal hearing was 18 August 2017 with specific reference to that decision of the Director.

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 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 18^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