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HCAL 100/2012
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 100 OF 2012
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BETWEEN
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MD ASAD ALI |
Applicant |
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and
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SECRETARY FOR JUSTICE |
Putative Respondent |
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sued for and on behalf of |
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DIRECTOR OF IMMIGRATION |
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| Before: Hon Au J in Court |
| Date of Hearing: 25 January 2013 |
| Date of Decision: 25 January 2013 |
| Date of Reasons for Decision: 28 January 2013 |
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REASONS FOR DECISION
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1. This is the applicant’s leave application for judicial review. I dismiss it after hearing with reasons to follow. These are my reasons.
A. INTRODUCTION
2. The applicant is a torture claimant. This is his application made on 3 August 2012 for leave to apply for judicial review against the adjudicator’s decision dated 23 July 2012, dismissing his petition against the Director of Immigration’s determination dated 20 June 2012 to refuse his torture claim.
3. Since the filing of his leave application, the applicant has unsuccessfully applied for legal aid for a few times.
4. On 7 December 2012, I directed that there shall be a hearing of the leave application and that the putative respondent (who is the Director) shall appear.
5. This is the hearing of the leave application, and the Director is represented by Ms Parwani.
B. APPLICABLE PRINCIPLES
6. It is trite that in order to succeed in this leave application, the applicant must show that his intended judicial review is reasonably arguable, in the sense of having a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at paragraphs 14-17 per Li CJ.
7. The applicant’s torture claim was made under Article 3 of the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (“the Convention”).
8. It is also well established that for a torture claim to fall within the Convention, one of the elements that needs to be established is that the complained “torture” (as defined under Article 1(1) of the Convention) is “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” In other words, the “torture” has to have an official or state element in it, whether by direct or indirect involvement or by consent or acquiescence.
9. Further, notwithstanding that the principle of “high standards of fairness” requires the Director to afford a claimant every reasonable opportunity to represent his case, the Court of Appeal in TK v Michael Jenkins[1] has also recently reiterated that it is still the claimant’s primary duty to prove his case. Thus, the Court of Appeal said at paragraph 25: “High standards of fairness certainly do not entitle the torture claimant, having stated a claim, ‘to simply sit back and require the Director to disprove it’…”
C. THE PRESENT APPLICATION
10. The applicant’s torture claim in gist is that, during the relevant period, he had been attacked a few times in his village by members of the political party known in short as BNP. BNP is the governing political party in Bangladesh. He was so attacked as he had been recruiting members in his village for another political party known as AP. As a result of these attacks, he had suffered injuries. In one of these attacks, he said he had become unconscious, and was then later admitted to a hospital for 7 days or so for his “internal injuries”, “swelling of the body” and “lacerations” over his right arm.
11. He eventually came to Hong Kong in November 2007, and after being arrested for illegal remaining, filed his torture claim in December.
12. After various interviews and considering the applicant’s answers to the questionnaires, the Director eventually refused his claim in June 2012.
13. The applicant filed the petition against the Director’s said determination.
14. The learned adjudicator later dismissed the petition on papers.
15. In his written Decision, the adjudicator stated that even taking the applicant’s case to the highest, and putting credibility on one side (which I take it to mean that assuming everything said by the applicant in support of the torture claim was accepted), he is not satisfied that the applicant has established that:
(1) Any of the alleged attacks carried the “State actor” element (paragraphs 8-11).
(2) The applicant had suffered “severe pain and suffering” as required under the Convention as a result of the attacks (paragraphs 12-13).
(3) The torture was made for the reasons or purposes stated in the Convention (paragraphs 14-15).
16. Although I have reservation as to whether the learned adjudicator was correct (as a matter of law) in his conclusion summarized in paragraphs 15(2) and (3) above, I accept Ms Parwani’s submissions that the applicant has clearly failed to show (even taking whatever he said in the torture claim was correct) any arguable case that the attacks had any official element in it (whether by way of direct involvement, consent or acquiescence).
17. This is so since in all the materials and answers given by the applicant in his torture claim (and Ms Parwani has taken this court through them), there is nothing in the applicant’s case, evidence or allegations that could show that these attacks were somehow instigated or with the consent or acquiescence of the public officials, let alone the bases of such belief (if any).
18. In light of above and applying the observations made by the Court of Appeal in TK v Jenkins, supra, I am satisfied that (even taking the applicant’s case in this torture claim to the highest), it is not reasonably arguable that the adjudicator was wrong in his conclusion that the attacks (even if they resulted in severe physical or mental pain or suffering) did not involve any official elements falling within the definition or requirements under Art 1(1) of the Convention[2].
19. On this basis alone, the decision to dismiss the petition is a correct one (notwithstanding my observations at paragraph 16 and footnote 2 above), and the intended judicial review has no reasonably arguable chance of success.
20. I will therefore dismiss the leave application with no order as to costs.
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(Thomas Au) |
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Judge of the Court of First Instance
High Court |
The applicant appeared in person
Ms Audrey Parwani, Government Counsel, of the Department of Justice, for the putative respondent
[1] Unrep, CACV 286/2011, 12 November 2012, Cheung CJHC, Stock VP and Fok JA.
[2] Although I come to the view that the learned adjudicator was correct in this conclusion, I do have serious doubts about his reasons for coming to this, as set out in paragraph 8 of the Decision, which reads “…This is especially true when the acts are illegal, for example assault, or framing up with false charges. I do not accept that such illegal acts could possibly be the official stance taken by the national government of Bangladesh. I find the several assailants were acting on a frolic of their own with no State participation.” In my view, it cannot be said that, solely because the acts complained of are illegal acts (which must invariably the case in most torture claims) (and without more), such illegal acts “could not possibly” be the official stance taken by the relevant government. This does not necessarily follow as matter of logic. Further, it is also my view that there is no sufficient evidential basis (with the materials provided before me) for the learned adjudicator to also positively “find” that the assailants were acting on “a frolic of their own”, when he had put the applicant’s case to the highest without doubting his credibility. It is one thing to say that, despite that, the applicant had failed to prove the state involvement in the attacks as required under the Convention. It is another to positively find that there is no such involvement and that the attackers were acting solely on their own initiative.
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