Main Uddin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL60/2017

[2018] HKCFI 1626

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 60 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 1 December 2007 only to be arrested by the police on 11 January 2008.  He lodged a torture claim which later, under the Unified Screening Mechanism was assessed on three applicable grounds, his torture risk, his BOR 3 risk and his persecution risk and rejected by the Director of Immigration (“the Director”) on 30 December 2014.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which conducted an oral hearing dated 10 June 2015 and rejected his appeal on 8 December 2016.  The applicant was legally represented in that appeal.

2.The applicant filed a notice of application of leave to apply for judicial review on 17 January 2017 and requested an oral hearing.  He was given a hearing date of 21 July 2017 and appeared in person but had a letter from the Hong Kong Bar Association free legal service scheme to assist the applicant to apply for an adjournment of the hearing.  The applicant hoped to wait for the outcome of his BOR 2 risk claim before proceeding with his application for leave to apply for judicial review.  This application was adjourned pending that outcome.

3.That application had to be made because after the applicant had applied for leave to apply for judicial review, the Director had decided to consider the applicant’s BOR 2 risk and wrote to the applicant on 10 March 2017 to invite him to submit any further material for consideration within 14 days.  On 7 April 2017 the applicant did write back to the Director.  On 2 August 2017 by way of a Notice of Further Decision the Director rejected the applicant’s BOR 2 risk claim.  On 14 August 2017 the applicant appealed to the TCAB against the Director’s dismissal of his BOR 2 risk claim.  On 13 September 2017 the adjudicator determined the applicant’s appeal without a hearing and rejected his appeal.

4.This application for leave to apply for judicial review was further adjourned in December 2017 because the applicant had engaged private representation to assist him in his appeal against the Director of Legal Aid’s refusal to grant him legal aid in this application.  This application was finally heard on 30 March 2018 and the applicant was unrepresented.

Background

5.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 Awami League (“AL”) because of his involvement with the Bangladesh Nationalist Party (“BNP”).  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.

6.The applicant had 10 years of education and from 2003 to 2005 owned a garment shop in a market near his home.  He joined the BNP in January 2001, attended meetings and rallies and assisted the party during elections.  He was promoted to the post of assistant secretary of Toyabpur Ward in around 2002.  Before his promotion, in around June 2001 some AL members invited him to join the AL party but he told them he would consider it which was a polite way of rejecting their request.  He recognised three of them as his ex-school classmates.  They were influential AL members in his area and connected to senior ministers and a member of Parliament.  This request by them was repeated on numerous occasions but he avoided directly answering them until the first incident in February 2005.

7.One day in February 2005 his three ex-school classmates came to his shop with 10 to 20 unknown men under the instructions of the local chairman and secretary of the AL, Alam and Abul.  The applicant was told if he did not join the AL as they demanded he had to pay 1 million takas to the party or else they would ruin his business in the market; he had six months to comply.  They left without another word.  The applicant did not report this to the police because the senior police officer at the local station was a supporter of the AL.  The president of the BNP said he could not help as it was close to the election and suggested he close his shop for the time being but the applicant had borrowed money from his father to start his business and refused to consider that.

8.In November 2005 those same AL people came into his shop and told the applicant he had had enough time to comply with their demands.  They damaged his shop and beat him up; one even pointed a pistol at his chest to scare him.  Before they left, they threatened to kill him if he failed to pay them the money.  The applicant walked to a nearby clinic and received some medical treatment for his bruising and an eye injury.  He did not report this attack to the police either.  After this attack and assault he stayed at home for five to six months to avoid the AL members. His mother sold his shop one month after the attack.

9.At the time of the attack, the applicant’s father was working in Saudi Arabia and the applicant’s mother said when he found out about it he had a heart attack due to worry and later died.  About six months after that attack on his shop, on 10 June 2006, the applicant attended a BNP political meeting in a football field next to a market because he had a duty as the secretary of the BNP in his village.  During the meeting there was a fight between a group of AL and the BNP.  Explosives were thrown into the crowds but the applicant managed to escape and return home without injuries.  Later, he heard one of the AL members was killed in the incident so he ran and hid in a jungle nearby to his village.  He did this because he had once been threatened that if he failed to pay the money they demanded, the AL would frame him for murder.  He returned home later that night and his mother told him that AL people had been in the village looking for BNP supporters so he left again to hide about a kilometre away.  Three days later a large group of AL members came to his house and told his mother that they would kill him if they found him.  He was told that the police came too.

10.The applicant then fled to his grandfather’s home an hour away when he heard the AL and the police went to his home.  He hid there for about three weeks when five unknown men claiming to be from the AL attacked him outside his grandfather’s home with a bamboo stick but he managed to escape before he was seriously injured.  He left immediately for Dhaka by bus which took five hours and lived in a boarding house for about six months.  His mother bribed the police at home and found out he had been framed for murdering the AL member at the football ground.

11.In February 2007 a friend told him that the AL had tracked him down to his boarding house in Dhaka so he escaped through the back door and moved to a friend’s house an hour away for a couple of days before taking a six-hour bus journey to Chittagong where he hid in a boarding house for 10 months.  He rarely left the boarding house but lived in fear the AL would find him in Chittagong therefore, made arrangements to leave Bangladesh for Hong Kong to seek protection.  The applicant’s refugee application with the UNHCR made in December 2007 after he arrived in Hong Kong was rejected.

12.The adjudicator of the TCAB, as did the Director analysed the applicant’s claim under all applicable grounds (albeit the BOR 2 risk was dealt with separately);

(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”).

The first appeal/petition

13.The adjudicator did conduct an oral appeal hearing and treated the appeal as a rehearing. The applicant was legally represented and he elected to give evidence.  The adjudicator set out the law and key legal principles applicable to the three grounds dealt with in this first appeal; the torture risk, the BOR 3 risk and the persecution risk.  He also set out the Country of Origin information (“COI”) that he referred to in finding that State protection was reasonably available and internal relocation a viable option if there was any risk to the applicant if refouled.

14.The adjudicator considered the applicant’s evidence and found there was no evidence any of his ex-schoolmates or those that threatened or assaulted him were officials or acting on behalf of government officials.  He found no evidence that the applicant was a target of the State; he was able to leave through Immigration channels, had never been arrested or detained or imprisoned.  None of the injuries he describes were so serious that they can be defined as torture nor did they reach a minimum level of severity.  The mental injuries he alleges are not supported by any evidence and he clearly carried on with his daily life then and now.

15.The adjudicator, as did the Director, applied the law and key legal principles to the applicant’s own facts and found he was unable to establish within the definition of torture under section 37U(1) of the Immigration Ordinance that he was at risk of torture.  The adjudicator also found that if there was any risk, State protection was reasonably available and internal relocation was also a viable option.

16.As far as the BOR 3 risk claim was concerned the adjudicator considered the applicant’s own facts and the requirements for non-refoulement under BOR 3 before finding he was unable to invoke the protection of BOR 3.  He could not prove he was at risk of severe ill-treatment which will attain the requisite level of severity to amount to torture or CIDTP if refouled nor show he faced a genuine and real risk of being subjected to such treatment if refouled.

17.Lastly, the adjudicator found he was not at real risk of persecution on any Refugee Convention ground nor did he have a well-founded fear of being persecuted for one of the grounds; his persecution risk claim failed.  The adjudicator confirmed the decision of the Director for these three applicable grounds.

The Second appeal/petition

18.Long after the adjudicator dealt with the first appeal, the Director assessed the applicant’s BOR 2 risk which meant that after the Director rejected it, the applicant had to lodge another appeal/petition to the TCAB.  This time, the same 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 applicant had no new evidence to present in the rehearing nor in his grounds of appeal; his submission was that the Director’s decision on the BOR 2 claim was “just a piece of empty assessment” and a repeat of his evidence.  The adjudicator then set out how he arrived at the decision not to order an oral appeal hearing.

19.He found there to be no need for further questions as all had been addressed previously. He found no advantage in holding an oral hearing.  He took into account the applicant had been given an opportunity by the Director to provide further material and submissions; the applicant had written to the TCAB in the notice of appeal/petition and put forward grounds.  His case was clear and the same as it was prior to and during his first appeal.  The adjudicator could see neither a need nor the justification to organise yet another oral hearing merely to recanvass exactly the same case as had already been dealt with.  Therefore, the adjudicator was of the view that the appeal could be dealt with by way of a paper review.

20.The adjudicator set out Article 2 and said he had considered the applicant’s case and the reasons given in the previous TCAB decision which were applicable to this rehearing.  Like the Director, he found the applicant could not succeed in establishing a case under BOR 2.  The adjudicator confirmed the decision of the Director.

21.Upon a reading of the papers, it is clear it was never the applicant’s case that he would be arbitrarily deprived of life in Bangladesh, have the death penalty imposed on him or otherwise be deprived of his rights under BOR 2.

Leave to apply for judicial review

22.I have to consider with rigourous examination and anxious scrutiny the papers and grounds of this application.  The applicant does name both the Director and the TCAB as proposed respondents but a reading of his affirmation names only the TCAB appeal decision in respect of which relief is sought.  Although he did add during the oral hearing a ground against the Director; his decision to reject his BOR 2 risk was given without any reasons.

23.The applicant’s affirmation sets out the following grounds for seeking leave;

(1) he acknowledges he has the burden of proof but submits it is not realistic to expect a man in his situation to provide evidence other than his oral evidence;

(2) the applicant alleges there was in fact official acquiescence by the government, the police attempted to frame him for murder. The TCAB’s finding there was no official acquiescence is a mistake of fact;

(3) the TCAB’s finding he is a fugitive from justice is wrong and his murder charge is a result of being framed;

(4) the TCAB’s finding he did not suffer any severe pain or suffering is wrong; his eye injury was proof;

(5) internal relocation was not a possibility because if he was arrested anywhere in Bangladesh, he would be connected to the murder charge in Toyabpur by the police internally;

(6) procedural impropriety and unfairness in failing to conduct an oral appeal hearing to rehear his BOR 2 risk; and

(7) against the Director, his determination of his BOR 2 risk contained no reasons for that decision.

24.The applicant’s first ground is more of a statement and certainly not a complaint premised upon the grounds of illegality and/or procedural impropriety.  The adjudicator did find the applicant had made bare assertions without direct evidence or personal experience.  However, he also found much of it was hearsay or exaggerated and embellished.  None of this detracts from the principle that the applicant does have the burden of proof.

25.The adjudicator did take into account both concepts of official acquiescence and extended acquiescence and was fully entitled to find there was no evidence of either type.  There is no merit in the second ground.

26.There is no merit in the third ground; the adjudicator rightly cited the relevant principles against fleeing from legal sanctions.   A refugee is a victim of injustice, not a fugitive from justice.

27.The adjudicator considered the fact there was no medical evidence to support the applicant’s assertion of serious harm or any evidence of psychiatric illness resulting from his misfortunes before assessing his torture risk as well as his BOR 3 risk; only his bare assertions.  In any event, even on his own facts, his eye injury may not reach the minimum level of severity required.

28.The applicant’s fifth ground was not reasonably arguable; the adjudicator gave full reasons for his finding and cited relevant and up-to-date COI to support it.  There are no proper grounds for interfering with such a finding, hence no merit in this ground.

29.In ground 6 submitted by the applicant during the oral hearing of this application, the adjudicator is accused of procedural impropriety and unfairness by failing to conduct an oral hearing.  Having read both the Director’s 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 Article 2 before finding that the applicant was unable to invoke the protection of BOR 2 for the purposes of a non-refoulement protection claim.

30.The last ground accuses the Director of failing to give any reasons for rejecting the applicant’s BOR 2 risk claim in his Notice of Further Decision dated 2 August 2017.  The Director considered the additional information provided by the applicant in his letter dated 7 April 2017 and summarised it in his notice; there was no new evidence and the basis of his claim had not changed.  The Director had no further questions and no further screening interview was required.  He applied his findings from his previous decision to the provisions of BOR 2 and found the applicant had failed to invoke the protection of BOR 2.  A reading of his previous decision shows the Director gave full reasons for his findings and there are no grounds to interfere with them.  There is no merit in this last ground

31.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.  The same applies to the Director

32.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 24^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