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

HCAL811/2017

[2018] HKCFI 1699

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 811 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 the Applicant being absent 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 has a long Immigration history in Hong Kong. He entered and overstayed in 1994, then he was sent home.  He came again and was deported in 2001 and came again in 2007 only to be arrested for breach of deportation order and two counts of making a false statement to an Immigration officer.  He then lodged a torture claim which was rejected on 27 July 2012 and he was deported on 3 September 2012.  He was arrested again on 7 April 2016 for suspected illegal Immigration offences.  He lodged a non-refoulement claim which was rejected by the Director of Immigration (“the Director”) on 30 June 2017.  He lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 6 October 2017.  The applicant’s solicitors filed a notice of application for leave to apply for judicial review on 26 October 2017 and requested an oral hearing.

2.A notice of hearing was issued to the applicant’s solicitors on 8 November 2017 for a hearing date on 16 January 2018.  However, on 29 November 2017 the applicant filed a notice to act in person and was absent on 16 January 2018.  Since the notice was served on his previous solicitor’s firm, the hearing was adjourned to 15 March 2018 and the notice was served again to the applicant’s last known address.  However, the applicant was absent on the second hearing date despite the second notice of hearing being served.  Therefore, I have considered this application on the papers.

3.The basis of his claim is that if he were to return to Bangladesh he would be harmed or even killed by members of the Razakar because he refused to hand over his inherited property to them.  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 to summarise it here.

4.The applicant was born in 1970, had very little education, is married with two children and worked in various employments.  According to the applicant, this terrorist group called Razakar fought for the liberation war in 1971 but did not surrender their arms in the post-war period and instead, became a criminal group of extortionists who were condoned by the government because they paid those that mattered to turn a blind eye.  The applicant said the police would not help him or his family when he tried to report them because they must have paid bribes to the police.

5.In 1974, when he was four years old, this terrorist group murdered his father for refusing to pay extortion money to them and then they hounded his mother and threatened the lives of her children until she fled from their own property.  In 1990, the applicant’s family tried to reclaim their land but were beaten by some members of the Razakar who had occupied their property.  The applicant was beaten badly and hospitalised for about nine days.  The police ignored their complaint and refused to help.  The village council were unable to and ignored the family request for help.

6.In 2005 the family decided to try again and returned to the village to reclaim their property but once again were beaten by members of the Razakar.  The applicant was hospitalised for about three days.  He was told that if he came again he would be killed.  Two weeks after this incident, the applicant was arrested for false charges laid by members of the Razakar and detained for several days.  He was told to either pay the Razakar 300,000 takas or stop attempting to claim their ancestral land. The applicant was the only family member arrested.  After his release the applicant fled to Hong Kong and filed a torture claim.

7.He was deported after his torture claim was rejected in 2012 and rented a home in Dhaka.  His family joined him there and his wife had a job.  On 15 August 2012 the applicant was abducted from his house by the Razakar who took him back to his ancestral village where they beat him, starved him and tried to force him to sign a transfer document; to transfer the family land to them.  He was detained for four days before he escaped by knocking a guard unconscious.  He made his way back to Dhaka and immediately packed his belongings and fled to India where he hid for two months.

8.He then returned to Bangladesh but hid in the north east for about two years where he worked in a hotel.  In around May or June 2015 someone from his home village saw him and he was worried that the Razakar would trace him there.  He then moved to Chittagong for his personal safety where he remained for about six months, arranging his trip to leave Bangladesh to seek protection.  In around January 2016 he used his passport to leave Bangladesh for Hong Kong again despite previous deportations and applied for non-refoulement protection.

9.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”).

10.The adjudicator conducted an oral appeal hearing and treated it as a rehearing.  He correctly set out the applicable law and key legal principles for the four grounds.  He set out the applicant’s evidence and considered his credibility.  The adjudicator did not believe the applicant was a genuine claimant and set out in his decision why he reached that conclusion.

11.He referred to the applicant’s evidence that he was abducted on 15 August 2012 in Dhaka.  He did not believe that the terrorist group would abduct him and take him back to his home village to detain him in order to force him to sign the transfer document.  The adjudicator could not see the logic in them taking the trouble to take him back to his home village in order to do this.

12.Secondly, the applicant’s evidence was he was abducted on 15 August 2012 in Bangladesh yet he was only deported from Hong Kong on 3 September 2012.  The adjudicator found he made up the abduction for the purposes of the claim; the abduction did not happen and he was not a genuine claimant.  The adjudicator quite rightly gave him an opportunity to explain the discrepancy but his explanation was unsatisfactory and weak.  There were other discrepancies that affected his credibility, such as differing reasons given by him at different times for going to Chittagong for six months before leaving Bangladesh.

13.Since the adjudicator did not find the applicant credible, he found he 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 the purpose of a non-refoulement protection claim.

14.The adjudicator went on to say that even if the applicant’s evidence was truthful, even on his own facts he would not have been able to make out a case for non-refoulement protection.  He would not have been able to establish a claim under any ground.  The adjudicator did consider objective, relevant and up-to-date Country of Origin information (“COI”) and found that there was State protection available to the applicant if he was at any risk and internal relocation was a viable option without undue hardship.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

15.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions.  The adjudicator meticulously analysed the material, claim and evidence and validated his findings.  The applicant’s complaints against him and the procedure undertaken are not made out.  He puts forward three grounds and I find them all to be without merit and substance.

16.In the first ground, the applicant suggests that the appeal bundle was served before the oral hearing and because it was in English, he could not afford to have it translated.  This meant he arrived at the appeal hearing confused and without a full understanding of the proceedings.  There is no record of any complaint by the applicant of being confused or any request by the applicant for the assistance of the interpreter to interpret his previous evidence, statements and the Director’s submissions that were in the appeal bundle.  Moreover, he made this application and affirmation in English which casts more doubt on this ground.

17.In paragraph 8 of the applicant’s affirmation he complains that it was not enough to simply arrange an interpreter to assist in the appeal hearing, he needed an interpreter to interpret the appeal bundle and the Director’s skeleton.  As I have said above, there was no record of any request for the assistance of the interpreter to interpret any of those documents and if he had made such a request, I am sure such assistance would have been provided before the commencement of the hearing.  The applicant goes further and seems to blame the fact he was unable to answer the questions honestly on the lack of interpretation, he says “I could have answered all the questions with honesty and clarified my claim in order to maintain my credibility which was later found questionable due to lack of interpretation of the hearing bundle…”.  I find this a weak attempt to make excuses for his lack of credibility.  There is no merit in this ground.

18.Another ground is a complaint that the applicant was unrepresented during the appeal hearing and therefore it is unreasonable to expect him to know how to complain to the adjudicator that the appeal bundle was in English and he had insufficient funds to have it translated to him.  He was not told that he could complain about the inappropriate arrangements made for the fair disposal of the appeal.  He then added that he did not dare to complain because he was afraid of bias from the adjudicator.  I find no merit in this ground when I consider he can make this application and affirmation in English and articulate such an obtuse complaint.

19.The applicant’s affirmation is not so clear and precise and if he is criticising the adjudicator for doubting his credibility when he answered all of his questions honestly then I will deal with that as a ground. 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 adjudicator of 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. If it is a ground, there is no merit in it.

20.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.

21.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 27^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