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

HCAL755/2017

[2018] HKCFI 1727

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 755 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 10 April 2014 only to be arrested on the same day.  He lodged a non-refoulement protection claim which the Director of Immigration (“the Director”) rejected on 19 April 2017.  He lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which was rejected on 3 October 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 11 October 2017 and requested an oral hearing which was set down for 13 March 2018; he appeared in person because his legal aid application was refused.

2.The basis of his claim was that if he were to return to Bangladesh he would be ill-treated by members of the Awami League (“AL”) because he was a supporter of 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 need to summarise it here.

3.The applicant’s family are all BNP supporters and he began to support the party in 2008 when he was a college student.  A cousin of his mother, Mr FB is the secretary of the BNP student wing, Chhatra Dal and relies on the applicant’s assistance and attendance at his events.  The applicant helped him campaign for the local BNP candidate in the 2008 election which brought him to the attention of the AL supporters.

4.In December 2009, the applicant was one of several people wrongly arrested for a theft at an electronics shop in his home village as was another cousin, SH.  Both were only released by the police after their fathers paid a bribe to the police to remove their names from the charge sheet.  The applicant found out later AL supporters had framed him.

5.The applicant moved to Chittagong because he was afraid of those AL supporters but he received telephone calls from them threatening to kill him if they saw him anywhere in Bangladesh.  His cousin, SH received similar calls so he moved to Brazil and later to the USA.  One day in mid-2011, to AL supporters came to the applicant’s workplace in Chittagong but luckily he was absent that day.  His employer denied all knowledge of him.  The applicant later saw another AL member he recognised in Chittagong so he decided to relocate to Sylhet where he found a new job.

6.In November 2012, the applicant returned to his home village because his family told him that the political situation had improved.  He opened a business with a friend Mr S. But one month later AL activists threatened him over the phone and told him to cease supporting the BNP.  They told him they knew he had worked in Chittagong and Sylhet.

7.Despite the warning, the applicant participated in a BNP led strike in March 2013 where some 50 to 60 BNP supporters vandalised parked vehicles and the police had to disperse the crowd. The applicant did not vandalise any vehicles but a few days later a First Incident Report (“FIR”) and witness statement were sent to his home ordering him to appear in court on vandalism charges.  He ran away to live with relatives for a few days.

8.On 5 May 2013 the applicant met with some relatives and friends to travel to Dhaka to attend a political event but his group of about 35 was stopped by about 100 AL supporters armed with knives and hockey sticks.  The confrontation was dispersed by the police. The applicant was injured and required medical attention.  After this incident he went to stay with his uncle in another town before going back to Chittagong.  His family told him that the AL supporters had vandalised their home and the police were looking for him again, there was a second FIR.

9.The applicant made arrangements to get a Chinese Visa in January 2014 but decided to go to Dubai instead.  In March 2014, he relocated to Dhaka and waited.  When he could not get a Visa for Dubai he left for China on 6 April 2014.  He later entered Hong Kong illegally.  His parents have told him that AL members continue to ask for his whereabouts.

10.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”).

11.The adjudicator treated the appeal as a rehearing. He arranged an oral hearing and the applicant elected to give evidence.  He submitted documents in Bengali without English translations. The contents were discussed during the hearing. The adjudicator did not grant him an adjournment to prepare English translations but he could provide translations and if they were submitted prior to the adjudicator making a decision, he would have regard to them.  The adjudicator delayed his decision for more than two weeks after the hearing but did not receive any English translations from the applicant.

12.The adjudicator correctly set out the law and key legal principles applicable to all four grounds in his decision.  He set out his findings and assessment of the applicant’s evidence.  The adjudicator doubted the authenticity of the applicant’s court documents he submitted at the appeal hearing and gave full reasons for his findings.  The timing of the submission of the documents was suspicious, the fact the applicant did not know the contents was suspicious and the known prevalence of fraudulent documents out of Bangladesh was considered.

13.The adjudicator also found the fact his 40-year-old uncle was the secretary of the student wing odd, this was compounded by the applicant’s explanation that the Chattra Dal and the BNP are the same when the adjudicator told him his uncle was more likely to be active in the BNP, not the student wing.  The adjudicator found the applicant’s answers to his question regarding his uncle’s role to be inventions and fabrications which undermined his credibility.

14.The adjudicator found many discrepancies in the applicant’s evidence; he made many new claims in the appeal hearing for the first time which contradicted his previous evidence and claim form.  He set them out in detail in his decision to demonstrate why he did not find the applicant a truthful and credible witness.  He also found his explanations as to his travel history and why he delayed his departure from Bangladesh nonsensical; it did not demonstrate a genuine fear of harm from AL members.

15.Having concluded the applicant fabricated his claim to create a profile upon which to apply for non-refoulement, he did not believe the applicant faced a real risk of prohibited harm from AL members due to his claimed BNP membership or political opinion.  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

16.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions.  The adjudicator 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.

17.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.  However, 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 was in the appeal bundle.  Moreover, he made this application and affirmation in English which casts more doubt on this ground.  I find no merit in this ground.

18.In the applicant’s second ground he 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; he 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.

19.The third ground is a complaint that the adjudicator relied on Country of Origin information that was not officially recognised, hearsay and out-of-date.  However, there are no particulars supplied by the applicant to support this ground.  What information he did consider relevant in spite of his finding against the applicant’s credibility, was clearly relevant, up-to-date and objective.  I find no merit in this ground.

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 31^st 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