ISLAM MD RAFIQUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL443/2017

[2018] HKCFI 810

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 443 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 by boat on 17 August 2014 only to be arrested on the same day.  He then lodged a non‑refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 11 April 2016 and 9 June 2017.  The applicant then lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 18 July 2017.  The applicant filed a notice of application for leave to apply for judicial review on 25 July 2017 against the TCAB decision.  The applicant requested an oral hearing which was set down on 19 December 2017; the applicant appeared in person having had his legal aid application refused.

2.  The basis of the applicant’s claim was that if he were to return to Bangladesh would be harmed or killed by Mr Butu and his gang because he did not pay him protection money.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim in detail in their decisions therefore, I only intend summarise it here.

3.  The applicant is married with four children and was a farmer until he started a cosmetic business in 1995 which was quite successful and earned him about 100,000 Bangladeshi Takas per month.  The applicant was also an ordinary member of the Bangladesh Nationalist Party (“BNP”) and participated in political activities in his area.  In about late 2011, Butu, a local infamous extortionist who was also the chairman of the Awami League (“AL”) branch in his area demanded the applicant pay him protection money to run his business smoothly.

4.  A gang of his men came to the applicant’s house on the first occasion holding hockey sticks and one held a gun to the applicant and said that Mr Butu sent them to demand that money as protection money.  The applicant also assumed it was because he was an active BNP member and the AL were now in power.  When he did not have the money to pay, his house was vandalised and they threatened to kill him if he did not pay within 10 days.  The applicant made a police report but he was told they would not investigate because of Butu’s position in the AL party.

5.  The second incident, a similar demand for protection money took place in early 2012 when the same gang came to the applicant’s house and vandalised it when he failed to pay them money on demand. At that time the applicant was in Dhaka.  Once again he made a police report but they did not register it.  He did tell the leader of the BNP of his area who said he would deal with it and nothing else happened to the applicant for two years until April 2014.  There was a third extortion demand in April 2014 at his shop in the local bazaar.  Mr Butu himself came with two men who were carrying guns.  Butu told the applicant that the 400,000 takas had remained unpaid therefore, the amount was now 1 million.  He demanded the applicant pay this amount in full within 15 days.  Immediately after this, the applicant closed his shop and left for Dhaka.

6.  The applicant hid in Dakar for several months whilst his journey to Hong Kong was arranged.  His friend arranged a Visa to China.  His passport had been issued in January 2014 and he left Bangladesh on 13 August 2014.  He had to pay a bribe of 50,000 takas at the airport to an Immigration officer to leave.  After he arrived in China, he made his way to Hong Kong by boat.

7.  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”).

8.  The adjudicator conducted an oral appeal hearing. He set out the applicant’s claim and evidence as well as the law and key legal principles applicable to the four grounds.  He treated the hearing as a de novo hearing.  The adjudicator considered the Country of Origin (“COI”) information that he referred to and relied on; setting it out in his decision.  He found that State protection was available to the applicant if he was at any risk upon his return to Bangladesh.

9.  The adjudicator found when he applied the applicant’s evidence to all four grounds, the applicant had not made out a case for non-refoulement protection.  On the applicant’s own facts, 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 anyone in that there was a real risk of torture by the same enemies if he returned to Bangladesh.  The adjudicator found that the applicant’s claim, on his own facts, had failed to invoke the protection of BOR 2 or BOR 3.  Lastly, the adjudicator found his fear of ill-treatment stemmed from a private dispute and did not fall within the definition of persecution; his persecution risk claim failed.  Despite this finding, he nevertheless went on to consider internal relocation, he found internal relocation a viable option for the applicant.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

10.  I have considered, with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the adjudicator’s decision to be without fault.  He analysed the material, claims and evidence carefully.  The applicant’s grounds and complaints are not made out.  I find no substance in the grounds of this application; they are not substantiated.

11.  It is a ground in the affirmation that the appeal bundle was supplied to the applicant late, it was in English and he did not have sufficient time to prepare for the appeal hearing.  As a result, he was confused in terms of what was happening at the hearing.  However, there are no particulars in the affirmation as to what the applicant found confusing.  Moreover, in the decision there is no indication of his confusion or a record of his confusion.  The applicant did not voice out his confusion or complaint to the adjudicator.  There was an interpreter there to assist the applicant who could have helped him if required.  I see no merit in this ground.

12.  The second ground is a criticism of the adjudicator for disbelieving the applicant.  The applicant says he answered all the adjudicator’s questions honestly yet the adjudicator did not believe him.  The adjudicator accepted most of the applicant’s evidence except for some aspects such as why he left Bangladesh, why he was not safe living in Dhaka and whether Butu was still looking for him to date.  In essence, the adjudicator found him credible.

13.  The last ground was a criticism that the TCAB relied on COI that was hearsay, out of date and not officially recognised.  The TCAB would have had the COI referred to by the Director in the appeal bundle.  The adjudicator says he asked the applicant if he had any comments on it.  The adjudicator said he considered the COI material, he then set out the facts he accepted from the material such as the police in Bangladesh are perceived to be incompetent and corrupt but there are ongoing reforms in Bangladesh to improve the police effectiveness and there is a system for complaints against the police corruption.

14.  I know the adjudicator would have been referring to the COI referred to by the Director.  The Director in his decision gave full citations and references to the publications he referred to and quoted from, including paragraph numbers.  This is what the adjudicator omitted in his decision.  This detail is necessary so the applicant can be aware of the publications the adjudicator was referring to in his decision-making process.  However, this omission is not fatal nor material when read in the context of the entire decision.  If the decision hinged on the COI then it would be more material but not in this case.

15.  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.

16.  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.

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

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