Hoshan Mohammad Alamgir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL760/2017

[2018] HKCFI 1728

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 760 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 17 March 2014 only to be arrested on same day.  He then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 6 February 2017.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which was rejected on 28 September 2017.  He then filed a notice of application for leave to apply for judicial review on 12 October 2017 and requested an oral hearing which was set down for 30 March 2018 when the applicant appeared in person because his application for legal aid was refused.

2.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 he was a member of Jamaat-e-Islami (“JEI”).  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 had 10 years of education, was married with one child and had his own fish farming pond business.  The applicant joined the JEI in November 2012 but one month later a group of 10 men of which six he recognised from his village came to his house, claimed to belong to the AL and demanded he quit the JEI.  They told him that this demand came from the village AL leader, Ruble who was actually his own cousin.  The applicant refused and said it was his choice which political party he followed.

4.A few days later, Ruble came to his house and said he brought shame to the family if he joined the JEI instead of the AL but the applicant still refused his request.  Nothing happened until February 2013 when a JEI meeting of about 20 members including the applicant at a local school was attacked by about 20-odd AL members led by Ruble carrying sticks.  The JEI members had no weapons and tried to escape; the applicant ran home unharmed.  Some were hurt and sent to hospital but none seriously.  The police did not investigate the attack.

5.Three days later, unknown men came to the applicant’s house and told them that Ruble sent them and they would kill the applicant if he did not join the AL.  They had guns and daggers, the applicant was scared and left home to stay with his sister which was lucky because those men did come back a few days later.  Not long after that, it appeared they knew he was staying with his sister so he went to Dhaka before they found him. He went to stay with his brother-in-law.  The AL members harassed his family who eventually moved away, meddled with his fish in his pond and Ruble even occupied his family’s land.  The applicant lived with his brother-in-law for about a year but still lived in fear he would be discovered. In early 2014 his brother-in-law told him that some AL members questioned him about the applicant which meant it was no longer safe for him to stay in Dhaka and he suggested the applicant go to Hong Kong for his own safety.

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 appeal hearing and treated the appeal as a rehearing. She correctly set out the law and key legal principles for all four applicable grounds as well as the burden of proof and standard of proof.  She set out the applicant’s claim as well as her analysis of the applicant’s evidence.  Also she set out and quoted the Country of Origin (“COI”) information she referred to and relied on at length.

8.The adjudicator proceeded on the basis that the applicant was telling the truth but found on the applicant’s own facts that he had not made out a case for non-refoulement protection on any of the applicable grounds.  On his own evidence, the applicant had not been subjected to torture, 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 the same members if he returned to Bangladesh.  There were no government or State officials involved.  He was not a target of the State. State protection was available even if he was at risk.  There is no evidence that the State had acquiesced in the acts of any assailants.  She found there is no evidence that the assailants were active outside of his village.  His torture risk claim failed.

9.Likewise, on his own facts, he had failed to invoke the protection of BOR 2 or BOR 3.  He had not established a personal and real risk of the right to life being violated on his return to Bangladesh.  He had not established the ill-treatment he would face if he returned home would attain a minimum level of severity nor had he proved a genuine and substantial risk of being subjected to such ill-treatment.

10.Lastly, the adjudicator found his fear of ill-treatment did not fall within the definition of persecution and his persecution risk claim failed. His cousin was using aggressive tactics to recruit him into a political party which did not come within a Refugee Convention reason.  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 her and the procedure undertaken are not made out.  I find no substance in the grounds of this application.  There were nine grounds but the ninth ground was struck out during the oral hearing; the applicant confirmed that there was an oral appeal hearing conducted which that ground claimed he was unfairly denied.

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 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 consider ample relevant, up-to-date and objective COI and quoted from COI at length.  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 criticism.

15.The applicant also criticises the adjudicator for doubting his credibility when he answered all of his questions honestly.  This is misleading and plain wrong when the adjudicator made no finding against the applicant’s credibility.  There is no merit in this criticism.

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 did not separately screen and assess the BOR 2 risk claim.  It was dealt with at the same time as the other applicable grounds and rejected at the same time in his decision dated 6 February 2017.  When the applicant lodged an appeal/petition, it was against the BOR 2 risk claim and the other risk claims.

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, 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