ASLAM MOHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL585/2017

[2018] HKCFI 1306

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 585 of 2017

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;

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 arrived in Hong Kong on 9 January 2013 and permitted to remain for 14 days.  The applicant overstayed and surrendered to the Immigration Department on 26 March 2013.  He lodged a non-refoulement protection claim which the Director of Immigration (“the Director”) rejected on 27 April 2016 and 23 June 2017.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which was rejected on 25 August 2017.  The applicant filed a notice of application for leave to apply for judicial review on 5 September 2017 and requested an oral hearing.  The applicant appeared in person at the oral hearing on 30 January 2018 because his legal aid application had been refused.

2.  The basis of his claim is that if he were to return to Bangladesh he would be harmed or even killed by members of the Hefazat-e-Islam or the Jamaat-e-Islam parties because he was a follower of Mr Mohammed Barkat Ullah Khan, a Preacher/Guru who had about 500 followers.  The two political parties felt that books written by this Guru were against Islam; he was not a mainstream Muslim.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, there is no need to repeat it here.

3.  The applicant was born in 1978 with many siblings, is married with two sons and had 10 years of education.  He worked in several factories until setting up his own medicine shop in October 2012.  In about 1994 he started to follow this Preacher/Guru which upset his parents and family.  His brother sent him to Korea via Hong Kong in about 1997 to distance him from this Preacher/Guru.  However, when the applicant arrived in Hong Kong he could not find his way to Korea and extended his Hong Kong Visa by going to China on several occasions.  When his Visa was not extended, he overstayed in Hong Kong, was arrested and deported.  When he returned home he continued to visit the Preacher/Guru.

4.  In March 1998 the two political parties attacked the house of the Preacher/Guru and many of his followers who were there including the applicant.  The Preacher/Guru had been warned by the applicant of the impending attack and was hiding in the police station.  The applicant was injured and cut on the chin with a hockey stick but managed to escape.  He took a two-hour bus journey to his sister’s home in Dhaka city where he received medical treatment; his wounds were stitched.  He remained hiding at his sister’s for one month.  He heard that the home of the Preacher/Guru was burnt down.  He did not return home until November 1998 because his mother was worried about him.  Two days later, he was abducted by four unknown people who drove him for 90 minutes before chaining him up in a room and torturing him.  The applicant knew they were members of the two political parties because he had no other enemies.

5.  The applicant was kidnapped for over three months, beaten every day and injected with an unknown substance almost every day.  His wife reported him missing but the police did not find him.  In early February 1999 he was dumped out in the open, a passersby took him to a health complex where he was recognised by a doctor who transferred him to another clinic.  He remained in that clinic for two months. The applicant did not report the attack or the abduction to the police. Later, he was given a job and lodgings in a factory belonging to a friend.

6.  He contacted his wife but did not go home; she told him that his mother had committed suicide because he had disappeared.  He remained living in that factory until January 2006 to avoid members of the two political parties because he was an active follower of the Preacher/Guru and a potential target.  During that time the personal assistant of the Preacher/Guru had been chopped to death by followers of the two political parties.  The Preacher/Guru himself had been arrested by the police and later in 2005 died in police custody.  After his death, the applicant felt he could return home.

7.  In March 2006 he was abducted for a second time and again detained, tortured daily and injected daily with unknown substances; his arms became paralysed.  He was dumped in front of a school about six weeks after his abduction.  The applicant is sure he was abducted because he was a follower of the Preacher/Guru.  He was taken to a clinic in Dhaka city where he remained until May 2006 before returning to the factory where he had previously lived.  He left there in February 2007 after falling out with the chemist the who threatened to tell the political parties of his whereabouts.

8.  His friend then found him a job and lodgings at a shoe factory in Dhaka city where he lived from November 2007 to April 2009.  The factory owner helped the applicant go to India in about April 2009 because he felt at peace in India.  However, he returned after a few days to the shoe factory.  He wanted to go to Nepal in February 2011 but his wife disagreed.  His wife financed his own medicine shop which he set up in around October 2012.  One month later, he was attacked by three men who poured some unknown liquid into his mouth before running away.  The applicant was taken to a health complex by strangers, had his stomach pumped and was hospitalised for two days.  He did not report this to the police.  His shop was vandalised, destroyed and all his stock was stolen in December 2012.  The applicant fled to Dhaka when he heard this because he assumed he was a target again.  He believed the members of the two political parties destroyed his shop because he had no other enemies.  He did not report this to the police.  He went to hide in the shoe factory again whilst his flight to Hong Kong was arranged.  He left on 8 January 2013.  Followers of the Guru/Preacher continued to be attacked even though in 2015 the two political parties declared that if those followers apologised, they would not be assaulted or their homes burnt down.  Despite some publishing apologies in newspapers, they continued to be targeted.  It was not safe for the applicant to return home.

9.  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”).

10.  The adjudicator treated the appeal as a rehearing.  He correctly set out the law and key legal principles applicable to all four grounds.  He set out the applicant’s case, evidence and his analysis of it.  He considered the applicant’s evidence suspicious, unreliable and far-fetched.  He set out his reasons for this finding.  However, he went on to consider the applicant’s case as if his evidence was true.

11.  He considered the definition of torture for the purposes of the torture risk as set out in section 37U of the Immigration Ordinance.  He found that even on the applicant’s own facts, the abductions and assaults he describes did not amount to torture.  The applicant cannot say there was State acquiescence because he did not report any incidents to the police.  His logic is flawed when he says the police would not assist or protect him because he was a follower of the Preacher/Guru when he describes how the police protected the Preacher/Guru in their own police station when the two political parties attacked his home.

12.  The adjudicator also considered Country of Origin (“COI”) information and found there to be State protection if the applicant was actually at risk if refouled.  The adjudicator found that on the applicant’s own facts, he was not able to establish within the definition of torture under that section that severe pain or suffering had been inflicted on him by members of the two political parties and that there was a real risk of torture by the same members if he returned to Bangladesh.  His torture risk claim failed.

13.  Similarly, for the same reasons the adjudicator found that the applicant had failed to invoke the protection of BOR 3 and found that there was no evidence of a genuine and substantial risk of being subjected to ill-treatment or CIDTP if refouled.  His BOR 3 risk claim failed.  There was no evidence that his right to life was at risk and the adjudicator concluded that he had failed to establish a personal and real risk of his absolute and non-derogable rights under BOR 2 being violated if he returned to Bangladesh; his BOR 2 risk claim failed.

14.  Lastly, the adjudicator found that the applicant’s persecution risk claim also failed. The applicant was a Muslim which was not a religious minority in Bangladesh.  The adjudicator concluded that the applicant had State protection available to him.  He found that the applicant had failed to establish he would be subjected to persecution for a Refugee Convention reason.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

15.  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, claim and evidence.  I find no substance in the grounds of this application and supporting affirmation.  The applicant put forward three grounds and I find them all to be without merit.

16.  In the first ground, the applicant suggests that the appeal bundle was served only days 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.  The decision of the TCAB states that the applicant adopted all of his previous evidence and the non-refoulement claim form which were in the appeal bundle and elected to give evidence.  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 and statements that were in the appeal bundle.  Moreover, he has made this application and affirmation in English which casts more doubt on this ground.  I find no merit in this ground.

17.  In the applicant’s second ground he criticises the adjudicator for doubting his credibility when he answered all of his questions honestly.  The adjudicator did find his evidence of his case spanning many years far-fetched.  I will not interfere with the adjudicator’s evaluation of the applicant’s evidence. Judicial review is not an avenue for revisiting the assessment by the adjudicator and considering the applicant’s evidence again.  In any event, the adjudicator went on to assess the claim on the basis that what he said was true.  There is no merit in this ground.

18.  The third ground is a complaint that the adjudicator relied on Country of Origin information that was not officially recognised, hearsay and out-of-date. However, there are no particulars supplied by the applicant to support this ground.  I find no merit in this ground.

19.  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.

20.  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, para 14-17.  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

Form CALL-1