Zakir Hossain v. Torture Claims Appeal Board/ Non Refoulement Claims Petition Office

CACV 146/2018

[2018] HKCA 547

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 146 OF 2018

(ON APPEAL FROM HCAL NO. 447 OF 2017)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court) :

1)  The appeal

1.1This is an appeal against the decision of Deputy High Court Judge (‘DHCJ’) Woodcock refusing leave to the applicant to apply for judicial review.

1.2This appeal was scheduled to be heard on 16 August 2018 at 9:30 a.m.  According to the directions contained in the letter from the High Court to the applicant dated 20 July 2018, the time for lodging a skeleton argument was extended to 9 August 2018.  If he failed to do the same by that time, he would be deemed to waive his right to have an oral hearing for this appeal and elect to have this appeal disposed of on paper.  The applicant failed to file any written submission and accordingly we will deal with this application on paper.

2)  Background

2.1The applicant is a Bangladesh national who allegedly entered into Hong Kong illegally by boat on 16 June 2007.  He was arrested by the police on 9 May 2008.  On 21 May 2008, the applicant raised his torture claim.  The applicant claims that he was a student member of a political group called Jamaat e Islami Chhatra Shibir unit (‘JICSU’).  An opposing political group called Awami League (‘AL’) was after him for the death of one of their fellow members.  He further believed that the current Bangladeshi government, led by AL, was against JICSU members.  As he was a JICSU member (or more specifically, he was a student member of the CSU unit of the Jamaat e Islami party) he would be persecuted in his own country.

2.2The background facts have been summarized by the Torture Claims Appeal Board (‘the Board’) and the Director of Immigration (‘the Director’) as follows :

(1)   The applicant said that he went to primary school for classes 1 to 5; he went to high school for classes 6 to 10; he went to a government college for classes 11 to 12.  He cannot recall the exact months or years in which he studied in various schools;

(2)   The applicant said he never worked;

(3)   The applicant alleged that in 2005, when he was still a student, he joined the student wing of JICSU.  The applicant does not hold any official position in JICSU;

(4)   The applicant alleged that one Ullah, who was a member of the AL, was murdered supposedly by members of his own JICSU on a day either in 2005 or 2006;

(5)   After AL members reported the murder of Ullah to the police, the AL members then geared their attention towards the applicant as the investigation was not fruitful.  As the AL sent people to look for the applicant every 15 to 20 days, the applicant felt immense pressure;

(6)   Two months after the alleged murder of Ullah, the applicant was attacked by a group of seven to eight people when he was walking home with two friends.  The applicant alleged that as it was dark, he could not recognize the attackers.  The applicant believed the attackers were AL members.  The applicant fainted on the spot.  The two friends managed to escape but the applicant said he could not.  The applicant alleged to have sustained injury;

(7)   The applicant stated that he sustained injuries to his head and left leg during the attack.  He was sent to the hospital in his village.  The applicant stayed in the hospital for around one week, then he was discharged.  It took around one month for the applicant to fully recover;

(8)   During the applicant’s one month stay at home for recovery, he did not encounter any problems;

(9)   The applicant did not contact the police to report the attack because he felt scared, and presumed that they would not be able to help;

(10)   After the applicant’s recovery, he travelled to his relatives’ house and went into hiding for three months.  During his stay, he did not encounter any problems from AL members; around this time, the applicant also travelled to India and Nepal around late December 2006 without difficulty;

(11)   During the time the applicant was hiding at his relatives’ house, he called his parents regularly, and his parents said AL members were still looking for him.  The applicant said AL members did not go to his parents’ house, but they did ask around his neighbourhood looking for him.  AL members did not disturb the applicant’s family;

(12)   The applicant stated he then went to Dhaka and stayed there for a short time hiding from place to place without difficulty;

(13)   The applicant left Bangladesh around February 2007 with a visa, passport and air ticket that were arranged by his uncle;

(14)   Since then, the applicant would call his parents every two to three months, and his parents would suggest him not to go back to Bangladesh as the AL was in power;

(15)   The applicant stated that his political party, the JI party, has suffered problems caused by the AL since they came into power.  He fears that if he returns, the AL people will look for him and his life would be in danger;

(16)   The applicant did not make his torture claim or refugee claim as soon as he entered Hong Kong because he did not know about it, and his friends told him that he would be deported if he makes such application;

(17)   The applicant submitted certain hospitalization proof that medical treatment was received at a hospital called IBNE SINA.

3)   The Director’s Decision and the Director’s Further Decision  

3.TheDirectordecidedagainsttheapplicant’snon‑refoulementprotectionon5September2014.  ThedecisioncoveredBillofRights (‘BOR’) Article 3 (Torture or Inhuman Treatment) risk, persecution risk and torture risk.  By a further decision of the Director of 8 May 2017, the Director also assessed BOR Article 2 (Right to life) risk in respect of the applicant and decided against the applicant.

4)  The Board’s Decision

4.1The applicant appealed to the Board on 19 September 2014.  After a hearing held on 14 April 2015, the Board dismissed the applicant’s appeal on 20 July 2017.

4.2On 25 July 2017, the applicant applied for leave to apply for judicial review of the Board’s decision. The supporting affirmation together with the applicant’s Form 86 had various grounds for judicial review.  After reviewing the Director’s Decision, the Director’s Further Decision and the Board’s Decision, DHCJ Woodcock refused to grant leave to apply for judicial review on 30 April 2018.

5)  DHCJ Woodcock’s decision

5.DHCJ Woodcock considered the merits of the case.  The relevant part of her decision is as follows :

‘ 6. The adjudicator conducted an oral appeal hearing and treated it as a rehearing. She correctly set out the law and key legal principles applicable to the four grounds. She set out the applicant’s evidence and claim and considered the standard and burden of proof in such claims. She then analysed the applicant’s evidence and considered his credibility. She reminded herself that an applicant in such a situation does not have to be completely consistent, in fact he may exaggerate to make his case better and the centerpiece of his story will still stand.

7.   However, this applicant had many inconsistencies that involved a failure to recall timing, dates, his age at certain events.  To join the student wing of a party the applicant had to be a student and according to his evidence, he should have finished school when he was 19 in the year 2000.  When asked about this he said he was seriously ill for two years so he was about 21 years old when he finished school therefore, in the year 2002.  If that is true he could not have joined JICSU in 2005.  This led the adjudicator to doubt he was a member of the student wing in 2005.

8.   ….The copy of the handwritten note from the clinic he attended for treatment bore a different name to his and a different village address…

9.   The adjudicator also bore in mind that the only incident, the only attack which led to the applicant leaving his home, family and country was carried out by unknown men that he did not recognize whom he assumed were members of the AL.  That bare assertion was based on assumption.  He did not report this attack to the police.  After that, the AL did not file any police report accusing the applicant of involvement in the victim’s murder nor is there any evidence the police or the government officials have any interest in the applicant.  From his passport it can be seen he travelled to Nepal, India and China without trouble.

…

11.   I have considered with rigourous examination and anxious scrutiny the papers and grounds of [his] application and the applicant’s submissions.  I find the adjudicator’s decision to be without fault.  He analyzed the material, claim and evidence carefully. The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

…

13.   In grounds 1, 2 and 4 it is submitted the adjudicator failed to consider relevant and up-to-date Country of Origin (“COI”) information and research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning.  The adjudicator considered COI material and State protection; she cited her references clearly.  She had no reason to go into great detail considering the reason she dismissed the applicant’s appeal.  These grounds are not arguable.

…

16.   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.

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

6)  Grounds of Appeal

(1)   Notice of appeal

6.1The Notice of Appeal of the applicant refers to the grounds of appeal set out in his supporting affirmation as follows :

‘ The grounds of my application are as follows:-

a)   The Honorable Deputy High Court Judge Madame Woodcock was wrong in law in holding that there was no state acquiescence or involvement.

b)   The Honorable Deputy High Court Judge Madame Woodcock failed to provide detailed reason in support of her decision.’

6.2They are bare allegations unsupported by any reason or argument.

(2)   State Acquiescence argument

6.3This argument is not engaged at all.  The Judge’s finding is set out in paragraphs 9 and 13 of her decision.  The applicant had not established that his life would be in danger on account of his alleged membership in JICSU should he be repatriated back to Bangladesh.

(3)   Detailed Reasons argument

6.4This ground is plainly unarguable.

7)  Disposition

7.There is no prospect of success in the intended application for judicial review and the appeal is dismissed accordingly.

Applicant, unrepresented, acting in person