Mannan Miah v. Torture Claims Appeal Board

HCAL 318/2017

[2021] HKCFI 1467

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 318 OF 2017

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BETWEEN

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Before:  Hon Lok J in Court

Date of Hearing:  29 April 2021

Date of Judgment:  26 May 2021

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J U D G M E N T

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1.This is an application for leave to apply for judicial review challenging the decision of the Member of the Torture Claims Appeal Board and the Adjudicator of the Non-refoulement Claims Petition Office dated 16 June 2017 (“the Decision”). In the Decision, Mr Ian Candy (“the Adjudicator”) affirmed the decision of the immigration officer rejecting the Applicant’s non-refoulement claims.

2.The Applicant has requested an oral hearing to hear his leave application and I therefore ordered one to be held.

3.In the Decision, the Adjudicator has provided the background of this case.  The Applicant is a native of Bangladesh.  He arrived in Hong Kong in 2006 and has remained here ever since.

4.The Applicant claimed that he was a student at Dhaka Dhoniya College (“DDC”) and was a member of the Bangladesh Nationalist Party (“BNP”).  A general election was due to be held in 2006 and the Applicant was allegedly involved in the preparation for the election campaign.  He was also a candidate for the post of Vice President of the DDC branch of BNP.

5.The Applicant claimed that he was attacked twice by members of the Awani League (“AL”) which was the opposite political party: the first time in December 2005 and the second time in May 2006.  According to the Applicant, there were also threats made against him and surveillance made by some AL members against him.  He left for Hong Kong after the second attack.

6.After arriving in Hong Kong and in around 2010 to 2012, the Applicant was told by his contacts in Bangladesh that AL was taking revenge on leaders of BNP and anybody who had assisted BNP in their election campaign.  The Applicant believed that he was one of them being targeted by AL.

7.The Applicant did not raise a torture claim after he arrived in Hong Kong.  He only raised the claim in February 2009 after he was arrested for overstaying in Hong Kong.  The Applicant failed to attend the screening interview with his torture claim in April 2012.  He was subsequently rearrested.  The torture claim was rejected by the immigration officer in July 2012.  In March 2014, the Applicant raised a non-refoulement claim.  He was advised by the Duty Lawyer Scheme in completing the Supplementary Claim Form.  The Applicant’s claim under the Unified Screening Mechanism was subsequently rejected by the immigration officer.  The Applicant lodged an appeal which was dismissed by the Adjudicator on 16 June 2017.

8.In his supporting affirmation for judicial review, the Applicant complained that as most of the documents in the hearing before the Adjudicator were in English, he was confused as to what actually happened in the hearing.  He also alleged that there was insufficient time for him to prepare for the hearing.  He answered all the questions honestly in the hearing.  Furthermore, he complained that the Adjudicator had erred in relying on: (i) hearsay source of news which is not “officially recognized”; (ii) some cases which are “fairly outdated considering the dramatic changes”; in making the Decision. According to the Applicant, “[the] lack of credible source of information has resulted in them making groundless speculations that it is safe for [him] to return back to my country of origin.”

9.I have great difficulty with the last complaint of the Applicant.  Nowhere in the Decision had the Adjudicator referred to any hearsay source of news or “outdated” cases as alleged.  I hope that the Applicant was not just copying the grounds for judicial review in other non-refoulement cases.

10.I have carefully considered the detailed written decision of the Adjudicator.  In my judgment, the Adjudicator had properly applied the law in reaching the Decision.  All the grounds for non-refoulement claims had been properly considered.  An oral hearing was held, in which the Applicant was given the opportunity to give oral evidence and submissions.  The Adjudicator had carefully and properly considered all such evidence and materials, and the Adjudicator cannot be faulted for reaching the conclusion that the Applicant had failed to establish any of the grounds for non-refoulement claims.  The Adjudicator was also entitled to take into account the Applicant’s past behaviour in making the Decision.

11.Though the Applicant was not legally represented in the hearing, the Adjudicator had properly discharged the duty owed to self-represented claimant in the conduct of the hearing.  The Applicant indicated that he could understand the Bengali language spoken by the interpreter and that he understood what the Adjudicator had explained. Further, the Adjudicator had properly explained to the Applicant that it was his burden to prove his case and the various issues that might affect his claim.  The Applicant was given adequate opportunity to address those issues, and there was simply no procedural unfairness to the Applicant.

12.In the oral hearing for this leave application, the Applicant submits some “new” documents to the court with a view to show that he was somewhat charged by the Bangladeshi police in respect of an attack on 9 May 2017.  He also produces a few letters or certificates apparently by the officers of DDC and BNP and his lawyer in the criminal proceedings, all dated the year 2018, to support the Applicant’s case that he was connected with DDC and BNP and there is real risk that AL, being the opposite party, would cause danger to the Applicant’s life if he has to return to Bangladesh.

13.There is serious doubt with these documents. First, the Applicant has remained in Hong Kong since 2006 and so he could not have committed the alleged attack in 2017.  There is simply no evidence that the Bangladeshi police is controlled by AL and as a result he cannot get a fair trial in Bangladesh.  Second, the Applicant has left Bangladesh for about 15 years, and so it is quite difficult to see how his alleged political affiliation so long ago would render him the subject of prosecution by “political enemies” 15 years later.  Third, if the Applicant was seriously concerned about his personal safety, there is no reason why the Applicant could not have obtained the certificates from the officers of the DDC and BNP earlier.  One would imagine that it would be more difficult to obtain supporting certificates to prove his political affiliation with the passage of time.  I therefore have reasons to believe that the Applicant was just adopting a “drip-after-drip” approach in producing documents with a view to prolong his stay in Hong Kong.

14.More importantly, the Applicant’s alleged affiliation with DDC and BNP had been considered by the Adjudicator in making the Decision.  That was one piece of information already presented before the Adjudicator.  In my judgment, the Adjudicator was entitled to put more weight on the past behaviour of the Applicant after he arrived in Hong Kong and came to the conclusion that such behaviour is incompatible with his claim to be someone who would be genuinely at risk of serious harm if he is refouled to Bangladesh.

15.If there has been a genuine change in circumstances such as the commencement of criminal proceedings against the Applicant, it is up to the Applicant, if he so wishes, to request the Director of Immigration to reconsider his claim.  However, this is not a ground for the court to reverse the Decision.  

16.As the Applicant’s intended judicial review does not have any prospect of success, I refuse his application for leave to apply for judicial review.

The applicant acting in present