KHAN IMRAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL556/2017

[2018] HKCFI 874

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 556 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 arrived in Hong Kong on 3 November 2007 but overstayed.  He was arrested by the police on 16 April 2008 and then lodged a non‑refoulement protection claim.  That was rejected by the Director of Immigration (“the Director”) on 7 January 2016 and 30 December 2016.  The applicant then lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 11 August 2017.  The applicant filed a notice of application for leave to apply for judicial review on 25 August 2017.  He requested an oral hearing which was set down for 28 December 2017 and he appeared in person having had his application for legal aid refused.

2.  The basis of his claim was that if he was refouled to Bangladesh he would be harmed or killed by his paternal uncle and the people of the Awami League (“AL”).  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in full in their decisions therefore, I only need to summarise it here.

3.  The applicant was a member of the Bangladesh Nationalist Party (“BNP”) whilst his uncle was an AL supporter.  When the caretaker government came into power in about November 2006 and the BNP stood down, the applicant’s trouble began.  His uncle suddenly claimed the farmland belonging to the applicant’s family as his own.  He threatened to kill the applicant if he did not transfer it to him.  Days later 4 or 5 men claiming to be from the AL came to his house looking for him.  He was not home but they said if he did not show up, they would go looking for him and kill him.

4.  The applicant feared for his life and on 27 November 2006 left Bangladesh and flew to Singapore and then Malaysia.  He did return to Bangladesh when his Visa expired in or around January 2007 but did not return home because his mother told him that the AL people were still looking for him.  He stayed in Dhaka.  In February he travelled to Nepal and India to avoid those people and when he returned he once again remained in Dhaka.  He travelled to India in May and returned in June until he travelled to Hong Kong in July.

5.  He then travelled to several countries but was refused entry in Korea and eventually returned to Hong Kong where he overstayed.

6.  The Director and the adjudicator 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”).

7.  The adjudicator conducted an oral appeal hearing and treated it as a rehearing.  He correctly set out the law and the key legal principles applicable to the four grounds.  He set out the applicant’s claim and evidence and assessed it as well as his credibility.  He adopted the Director’s findings and analysis of Country of Origin (“COI”) information; he found State protection available if there was any risk if refouled.  He rejected the applicant’s evidence and set out the reasons for his finding.  He did not believe he was a genuine claimant.

8.  He did however proceed to assess his claim on the basis that his evidence was credible and true.  Even on his own evidence and facts, the applicant had never sustained any severe pain or suffering or ill-treatment.  Nobody had assaulted him, certainly nobody in any official capacity or at the instigation of or with the consent or acquiescence of a public official or a person acting in an official capacity.  After he left Bangladesh, neither his uncle nor any AL members ever threatened him through his mother or family members.  The adjudicator found there was very little evidence of a future risk of torture or ill-treatment if he returned home.

9.  The adjudicator considered the definition of torture under section 37U(1) of the Immigration Ordinance.  He found that the applicant had failed to show there were substantial grounds for believing he would be subjected to torture in Bangladesh if refouled.  His torture risk claim failed.

10.  In order to invoke protection under BOR 3, ill-treatment must attain a minimum level of severity and the applicant’s evidence falls far short of that description.  There are also no substantial grounds that show a real risk of torture and CIDTP if refouled; his BOR 3 risk claim fails.  There was also no evidence he was at risk of being deprived of his right to life under BOR 2; there was no risk of death from the government.  His BOR 2 risk claim failed.

11.  Lastly, the threat from his uncle was purely a personal threat motivated by his desire to take the applicant’s family land.  There is no evidence he was a target because of his political beliefs.  There was no evidence of a well-founded fear of persecution because of a Refugee Convention reason.  His persecution risk claim failed.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

12.  The applicant did have somebody submit new documents to this court after filing this application which were not before the TCAB.  His explanation was that it has been difficult for him to get documents from his country until now, this is despite the fact he has been here since 2007.  I explained that I will not take into account evidence not considered by the TCAB.  It would not be appropriate in an application of this nature.  I advised him that if he had a fresh claim he should approach the Director and the Immigration Department.

13.  I have considered with rigourous examination and anxious scrutiny the adjudicator’s decision and find no fault in it.  He analysed the material, claim and evidence carefully.  The grounds in the applicant’s affirmation are not clearly or coherently set out and I have had to try and decipher what grounds he relies on.  He submits the adjudicator has failed to properly consider, research and fairly deal with COI information.  He cherry picked information that resulted in an unreasonable finding.  He failed to assess the applicant’s evidence against the COI material.  He failed to consider human rights abuses in Bangladesh.  He failed to consider extended state acquiescence.

14.  Firstly, the adjudicator did not find the applicant credible and in that scenario did not need to consider COI information.  But he then did go on to apply the law to the applicant’s case as if he was telling the truth and still concluded that he failed to succeed in his claim.  He did adopt the Director’s extensive citation of COI, his findings and quoted two publications before concluding state protection was available like the Director did.

15.  The applicant did not claim there was a flagrant consistent pattern of gross mass violation of human rights and a risk to him therefore the adjudicator did not consider it.  As for the concept of extended State acquiescence, this is not a case where State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill-treatment were being committed by non-state officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-state officials or private persons.  There were no substances in any of the above grounds.

16.  There are further complaints that relate to findings of fact which I will not disturb and have no merits.  He also makes bare assertions that there are police looking for him and that his enemies have dragged him into false cases which are new submissions or assertions not previously made before the TCAB which I will again ignore as they are not appropriate for me to consider.

17.  I have tried my best to decipher all the grounds of the applicant’s affirmation and I do not find any that show there was an error of law made 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.  This applies also to the Director’s decision.

18.  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

Form CALL-1