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

HCAL756/2017

[2018] HKCFI 1765

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 756 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 claimed to have entered Hong Kong illegally on 11 May 2013 only to be arrested three days later.  He lodged a torture claim which was rejected by the Director of Immigration (“the Director”) on 6 December 2013.  He lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which dismissed his appeal on 24 March 2014.

2.The applicant’s claim for non-refoulement protection claim was assessed under the Unified Screening Mechanism on applicable grounds other than the risk of torture namely, his BOR 3 risk and his persecution risk which was rejected by the Director on 11 December 2015. His BOR 2 risk was later rejected by the Director on 26 June 2017.  The applicant lodged an appeal/petition with the TCAB which conducted an oral appeal hearing on 7 August 2017 against the decisions of the Director and dismissed the appeal on 29 September 2017.

3.The applicant filed a notice of application for leave to apply for judicial review on 11 October 2017 against that TCAB decision and requested an oral hearing which was set down on 23 March 2018.  The applicant did apply for legal aid but it was refused on 10 January 2018.  On the morning of the hearing, the applicant was absent but did answer his mobile phone and informed the court interpreter that he did receive the notification of the date of hearing but was not going to attend because he did not feel well.  I proceeded to consider his application on the papers when there was no further request from the applicant.

4.The basis of his claim was that if he were to return to Bangladesh he would be harmed or killed by members of the Awami League (“AL”) or the Chatra League (“CL”) or Rocky because of previous conflicts in 2012 and the death of Biswajit.  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.

5.The applicant was born in Munshiganj, Bangladesh, had eight years of education and no work experience before coming to Hong Kong.  In 2010 the applicant and his family moved to Dhaka.  By then, he was actively involved with Chhatra Shibir (“CS”), the student wing of the Jamaat-e-Islami party and considered a leader.  The ruling party in Bangladesh is the AL and its student wing is the CL.  Fights would often break out between members of the CL and CS.

6.One day in 2012, the applicant was with about seven of his friends from CS when they were attacked by about 15 CL people armed with wooden sticks.  One of his friends suffered a head injury and was taken to a doctor but the applicant only suffered bruises on his arms and back.  They did not report the CL to the police because it would have been futile.

7.One day in late 2012, the Jamaat-e-Islami had called for a strike/demonstration which are illegal according to the AL.  The police would crackdown on such strikes/demonstrations and they would often end up in fights and be disrupted by the AL.  On that day, the applicant’s friend Bishwajit was killed by members of CL on the way to his tailors shop.  They saw him and accused him of belonging to the CS and attacked him.  The applicant was told this by other shopkeepers who witnessed the attack.  He was apparently targeted because he used to hang around with members of the CS, including the applicant.  The applicant was told that he too would be targeted by the CL because he was like a leader in the CS which frightened him.  He was shocked by the death of his friend and because the CL knew his home address he went to stay with a friend.

8.He stayed there for two days before he received a phone call from a CS member telling him that he had heard that the CL were plotting against him so he returned to his home village without telling anyone, not even his parents.  Within days, his parents called and said that former neighbours from their home village were being questioned by members of the CL which meant that they knew he had gone home.  The applicant did not feel safe anywhere in Bangladesh and his family wanted him to leave the country.  He had to make two attempts to leave, once at the end of January 2013 before successfully leaving on 7 February 2013.

9.The applicant found out later that 21 people were convicted of the murder of Biswajit; eight were sentenced to death and 13 were sentenced to life imprisonment.  However, the applicant found out in July 2015 when a Bangladeshi friend told him that Biswajit’s brother called Rocky later harassed the applicant’s younger siblings in Bangladesh demanding to know his whereabouts because he blamed the applicant for Biswajit’s death.  The applicant’s family had to leave Dhaka and move back to their home village because of Rocky’s threats.  The CL told Rocky that Biswajit was killed because of his association with the applicant.  Rocky now wanted to seek revenge against the applicant.

10.Since the torture claim had been dealt with previously, the Director and the adjudicator of the TCAB further analysed the applicant’s claim under the following three applicable grounds;

(a)   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”);

(b)   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

(c)   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 conducted an oral hearing and treated the appeal as a rehearing.  She correctly set out the law and key legal principles applicable to the three grounds.  She set out the applicant’s evidence and her analysis of it.  She set out the Country of Origin information (“COI”) that she referred to, in particular the information relating to the Jamaat-e-Islami party and the declaration it is an illegal organisation in 2012, the ruling by the Bangladesh Supreme Court declaring that party unfit to contest national elections as well as the history behind the party.

12.She questioned the applicant about his political activities and concluded that he had “clearly exaggerated his involvement in politics”.  He described himself as an active leader of the student wing, CS but yet was able to give little or no information about the leader of the party who had been convicted of war crimes and sentenced to death nor could he recall the names of those leaders who he said treated him like a younger brother.  He did not even know that his party had been banned in Bangladesh.  He could not name those he considered his enemies from the CL.  The adjudicator concluded that those exaggerations and his ignorance meant the applicant had not discharged the burden of proof.

13.The applicant told the adjudicator that he had been told that Rocky had joined the CL and would seek revenge on him if he returned home.  The adjudicator found it hard to believe that Rocky would join the group that admitted murdering and whose members had been convicted of his brother.

14.The adjudicator did go on to consider that even if he was telling the truth, the only incident in which he encountered any violence was a fight within a group in which he only sustained minor injuries; it cannot be defined as torture or harm in any sense.  She considered COI and found that although there was corruption and political violence, there was also evidence of measures to improve the police force, legal aid and human rights.  She found that State protection was available and internal relocation a viable option from the COI.

15.On the applicant’s own facts, he was unable to invoke the protection of BOR 3 or BOR 2.  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.

16.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 was not well-founded which is required; not just merely speculative.  Therefore, his persecution risk claim failed.  The adjudicator confirmed the decisions of the Director.

Leave to apply for judicial review

17.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 as well as the evidence and validated her findings.  The applicant’s complaints against her and the procedure undertaken are not made out.  He puts forward three grounds and I find them all to be without merit and substance.

18.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.

19.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; she 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.

20.The third ground is a complaint that the adjudicator relied on COI 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 she did consider relevant in spite of her finding against the applicant’s credibility, was clearly relevant, up-to-date and objective.  I find no merit in this ground.

21.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.

22.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 10^th day of August 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