Alam Mohammad Noore v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL726/2017

[2018] HKCFI 1762

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 726 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 22 December 2013 only to be arrested the next day.  He then lodged a non-refoulement protection claim which the Director of Immigration (“the Director”) rejected on 1 September 2016 and 16 June 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 19 September 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 6 October 2017 and requested an oral hearing which was set down for 23 March 2018 when the applicant appeared in person because his application for legal aid was refused 10 days earlier.

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”) having been tortured and threatened by them before he left Bangladesh.  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 summarise it here.

3.The applicant had two years of schooling and worked on his parent’s farm.  He came from a family which supported the Jamaat-e-Islami party (“JEI”).  In 2002 he became an ordinary member of the party and would help canvass votes from fellow villagers to support the party.  In 2003, there was a clash between supporters of JEI and the opposition AL which resulted in the applicant and others being falsely accused of a murder.  The applicant was forcibly taken by a group of people and detained until he was handed over to the police, taken to court, bailed and then required to report regularly.  After his bail, he and his father moved around in order to remain safe but then returned home where later in 2005 there was a settlement and the applicant was no longer falsely accused of murder.

4.The applicant lived in the Maldives between 2007 and 2009 and when he returned home he was involved in another confrontation with children of an AL supporter that led to another false charge against him but he was acquitted in court.  On the way to court in 2012, the applicant and other family members were assaulted and beaten by supporters of the AL and abducted but subsequently rescued by the police.  Finally, shortly before leaving for Hong Kong at the end of 2013, the applicant was ambushed in his own home by unknown people which led to him deciding it was no longer safe for him to live in Bangladesh.

5.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”).

6.The adjudicator conducted an oral hearing and treated it as a rehearing.  He set out the key legal principles for the four applicable grounds, the applicant’s evidence and his findings.  The applicant initially elected to answer questions and give evidence but once the adjudicator began to ask him about discrepancies in his evidence, the applicant refused to answer any further questions.  Even when the adjudicator explained to the applicant that if he did not answer his questions he would draw an adverse inference against the applicant, he continued to refuse to answer.

7.The applicant had initially given the adjudicator a different date of birth to that contained in his previous application and told the adjudicator that he had never been a member of the JEI and had never conducted any activities for them whatsoever.  He said that before he travelled to the Maldives in 2007 he had never been involved in any activities and had no difficulties.  Because that testimony was quite different from what was in his claim form, the adjudicator began to question him about the discrepancies.  Once he began to question the applicant, he refused to answer those questions and told the adjudicator that everything he wished to say was contained in his initial statement.  Despite the adjudicator’s warning that he would draw an adverse inference if the applicant would not provide explanations for discrepancies, the applicant refused to change his mind.  The adjudicator then brought the appeal hearing to an end.

8.In his decision, the adjudicator set out the approach to be followed when assessing the credibility of an applicant’s claim.  The adjudicator wanted to ask questions about the applicant’s claim which in his view contained very little information about his real problems with the political rivalry.  His account contained a series of mere assertions despite having been interviewed twice by the Director.  Those interviews made no real attempt to test any of those mere assertions.

9.As soon as the adjudicator began to ask questions it was clear that the applicant’s answers were so fundamentally different from his initial account that an explanation was required.  As soon as the adjudicator asked for an explanation, the applicant refused to answer any more questions.  As the adjudicator said, “I was not only unable to obtain any explanation for these major discrepancies, but also could not put any genuine meat on the bones of the assertions he had set out in his initial statement”.  An applicant has to cooperate as there is an element of joint endeavour in assessing a non-refoulement protection claim.  The adjudicator quotes paragraph 205 of the UNHCR Handbook on the Procedure and Criteria for Determining Refugee Status.

10.The adjudicator found that since the applicant has given two conflicting accounts and it is not possible for both accounts to be true, his failure to provide any explanation fatally undermines his credibility.  The adjudicator found that he was unable to find any evidence of political rivalry or activity to support his claim or case.  He did not believe the applicant was a genuine claimant.  He 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.  He 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.  I find the decisions of the Director and the adjudicator to be without fault.  They have both analysed the material, claims and evidence carefully. The applicant’s complaints against them and the procedure undertaken are not made out.  He does not give any particulars to support any of his grounds.

12.The applicant’s affirmation is not easy to decipher and it would appear that 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.

13.The second ground against both the adjudicator and the Director is that they failed to properly consider Bangladesh had obligations to act with due diligence, essentially the decision-makers did not consider the concept of extended State acquiescence.  Further on in the affirmation, the applicant also accuses the decision-makers of failing to consider whether there exists in Bangladesh a gross violation of human rights.  They are also accused of failing to properly analyse whether there is available State protection in the country.

14.This is not a case where the applicant says State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts or torture or ill-treatment were being committed by non-State officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private persons.  Neither the Director nor the adjudicator had to consider the concept of extended State acquiescence.  In addition, it was not the applicant’s case he was a victim of human rights abuses.  There is no merit in this ground.

15.The third ground against both the adjudicator and the Director is that they failed to carry out sufficient enquiry into COI.  The information they did consider was hearsay and not officially recognised which led them to wrongly conclude there was reasonable State protection available to the applicant if he was at any risk if refouled.  The issue I have with this ground is that there are no particulars to support it.  A reading of the Director’s decision clearly shows he considered objective and relevant COI which led to an informed decision of reasonable available State protection; I would not be interfering with his finding.  The adjudicator did not find the applicant a genuine claimant therefore had no need to enquire into COI.  There is no merit in this ground.

16.I do not find any ground that shows there was an error of law by the Director or the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

17.In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

Dated 9^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