ALI MD LIAKAT v. TORTURE CLAIMS APPEAL BOARD/ NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 145/2018

[2018] HKCA 546

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 145 OF 2018

(ON APPEAL FROM HCAL NO. 718 OF 2017)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court) :

1)  The appeal

1.1   This is an appeal against the decision of Deputy High Court Judge (‘DHCJ’) Woodcock who refused to grant leave to the applicant to apply for judicial review.

1.2   The date for this Court to hear this application was 16 August 2018 at 11:00 a.m.  According to the letter from the High Court to the applicant dated 20 July 2018, the time for lodging his skeleton argument was extended to 9 August 2018.  If he failed to do so by the time, he was deemed to have waived his right to have an oral hearing for this appeal and elected to have this appeal disposed of on paper. The applicant did not file any written submission.  Accordingly we will deal with this appeal on paper.

2)  Brief factual background

2.1   The applicant is a Bangladesh national who allegedly entered into Hong Kong illegally on 19 June 2014.  He was arrested by the police on the same day.  On 22 June 2014, the applicant raised his torture claim.  DHCJ Woodcock summarized the background of his case :

(1)   The applicant was born and brought up in Dhaka, Bangladesh, married with one child and has been a supporter of the Bangladesh Nationalist Party (‘BNP’).  In 2003, the applicant became rivals with one Liton.  In 2007, Liton and his brother Massoud became involved in the Awami League (‘AL’).  They began to harass the applicant and other BNP members.  In 2013, Liton and Massoud physically obstructed the applicant and other BNP members and tried to stop them from holding rallies on a number of occasions.  Sometimes they waved wooden sticks, brandished pistols and even ignited bombs and threw them towards the applicant and others;

(2)   In February 2014, Liton gained prominence in AL.  He held a pistol and threatened the applicant with death.  The applicant feared for his own safety.  He left Bangladesh for India and Nepal for a short while in late March 2014.  He returned to Bangladesh a few months later only to be attacked by Liton and AL members, so he left Bangladesh for Hong Kong.

2.2   The additional background facts as summarized by the Torture Claims Appeal Board (‘the Board’) and the Director of Immigration (‘the Director’) are as follows :

(1)   The applicant asserted that he completed nine years of schooling and thereafter worked as a salesman, as a waiter and as a supervisor in a bakery;

(2)   Since the applicant arrived in Hong Kong in around June 2014, he heard that Liton was initially making enquiries about him, but has since then stopped.  The applicant believes he could be traced by AL anywhere in Bangladesh;

(3)   During the screening interview, the applicant stated that he was not a special person in the BNP but just an ordinary person;

(4)   There were altercations between the applicant’s group of people and Liton’s group of people;

(5)   On one occasion the Liton group of people (i.e. Liton’s brother and others) approached the applicant’s house with a pistol.  Shots were fired in the air and threats were made, but after a while, Liton’s group dispersed (‘Pistol Incident’);

(6)   After the Pistol Incident, the applicant went to his friend’s house and stayed for a week and nothing bad happened during that time;

(7)   The applicant did not seek help from the authorities in Bangladesh as he thinks it would be unhelpful as AL was in power, and the situation would only get worse;

(8)   The applicant stated that AL conducts all kinds of business in Bangladesh, so he could easily be found and there is no chance for him to relocate to other parts of Bangladesh.

3)   The Director’s Decision and the Director’s Further Decision   

3.  TheDirectordecidedagainsttheapplicant’s non‑refoulement protection claimon25August2016.  ThedecisioncoveredBillofRights (‘BOR’) Article 3 (Torture or Inhuman Treatment) risk, persecution risk and torture risk. By a further decision of the Director of 16 June 2017, the Director also assessed BOR Article 2 (Right to life) risk in respect of the applicant and decided against the applicant.

4)  The Board’s Decision

4.   The applicant appealed against the Director’s decision to the Board on 8 September 2016.  After a hearing held on 27 June 2017, the Board dismissed the applicant’s appeal on 22 September 2017.

5)  DHCJ Woodcock’s decision

5.1   On 4 October 2017, the applicant filed Form 86 seeking leave to apply for judicial review of the Board’s decision. The supporting affirmation together with the applicant’s Form 86 set out various grounds for judicial review.

5.2   DHCJ Woodcock considered the merits of the case.  Her decision in part was as follows :

‘ 6. The adjudicator conducted an oral appeal hearing and treated the hearing as a de novo hearing / rehearing. The applicant elected to answer questions. He correctly set out the law and key legal principles applicable to the four grounds. He also correctly set out the approach for assessing the credibility of such applicants, citing the relevant authorities he referred to. He then set out the applicant’s evidence, his assessment of it and his findings.

7.   He concluded the applicant was probably a witness of truth. He believed he was a low level political activist in his local area who had not continued his political involvement since he left Bangladesh in 2014. He is not a political activist now, had no position within the BNP and is not known outside his very local area. The adjudicator concluded that the level of real risk to the applicant in his local area from non-state actors was very low; he described it as falling below that which could be categorized as a real risk.

8.   He did go on to consider that if he was wrong and there was a risk then according to the Country of Origin (“COI”) information, he could not receive sufficient protection in his local area.

9.   The next question therefore, is whether the applicant could safely and reasonably relocate to a different part of Bangladesh to avoid the non-state agents of harm who may seek to target him in his local area. If he could then his claims will fail. The adjudicator found that the applicant could reasonably and without undue hardship relocate outside his home area as he had previously done once before coming to Hong Kong. As a result of that finding, the applicant does not face a real risk of any form of serious harm because that risk is simply so unlikely to materialize or because he could avoid the risk by relocating to a different part of Bangladesh.

10.   The adjudicator applied his findings to the applicable grounds and concluded that the applicant either faces only a fanciful risk of serious harm in his local area or, if he does face such a risk he could avoid it by relocation. That being the case, his fear of persecution is not objectively well-founded and he has failed to establish a real risk of persecution as defined in the Refugee Convention; his persecution risk claim failed.

11.   For the same reasons there is no basis to conclude there would be any real risk to the applicant’s right to life or that he would face the prospect of torture of CIDTP; his BOR 2 and BOR 3 risk claims failed.

12.   The same reasons apply to the torture claim and there is no real risk that the applicant would face torture as defined by section 37U(1) of the Immigration Ordinance; his torture risk claim failed. The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

13.   I have considered, with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions. I find the adjudicator’s decision to be without fault. He analyzed the material, claim and evidence carefully. The applicant’s complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application.

…

15.   In grounds 1, 2 and 4, it is submitted the adjudicator failed to consider relevant and up-to-date COI research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning. There are no particulars provided but in any event, the adjudicator very fairly considered relevant and recent material that supported the applicant’s concerns and made a finding there was not sufficient State protection in the applicant’s local area if there was a real risk to him if refouled. These grounds are not arguable. I highly suspect these grounds were taken word for word from the almost identical, what I call the often used “pro forma” affirmation other applicants often use and not specific to this decision.

…

18.   There is a complaint the applicant answered all the questions honestly and is aggravated that his credibility was found questionable. Again this submission makes no sense and was clearly cut and pasted from an affirmation referring to another applicant because this adjudicator found this applicant was probably a witness of truth. He did not find his credibility questionable.

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 judgment, the applicant’s claim is not reasonably arguable. There is no realistic prospect of success therefore, I refuse leave to apply for judicial review…’

6)  Grounds of Appeal

6..   The Notice of Appeal refers to the grounds of appeal set out in the applicant’s supporting affirmation which are as follows :

‘ The grounds of my application are as follows:-

a)   The Honorable Deputy High Court Judge Madame Woodcock was wrong in law in holding that there was no state acquiescence or involvement.

b)   The Honorable Deputy High Court Judge Madame Woodcock failed to provide detailed reason in support of her decision.’

6.2   These grounds are bare allegations not supported by any reason or argument.  He attached a schedule to his affirmation the content of which is almost identical to his affirmation filed in his application for leave to apply for judicial review, save and except certain unfocused case references that do not provide particulars addressing the decisions of DHCJ Woodcock and the Board.  There is also an ‘Other Information’ section in this affirmation in which the applicant said he would reserve his rights to raise other grounds.  In this section he also referred to grounds that have already been dealt with by DHCJ Woodcock, such as internal relocation and the AL’s influence in Bangladesh.

6.3   Accordingly we will only address the two grounds as identified earlier.

(1)   State Acquiescence argument

6.4   The Board found that there would not be sufficient protection for the applicant if he was to be targeted.

‘ 40. The appellant need only establish a real risk, less than a probability, that he would face the risk of some form of serious harm in his local area from which he could not receive sufficient protection. In the overall context of the widespread use of low-level political violence in Bangladesh and the corruption and impunity widely reported in the police force, I conclude if he were to be targeted again in his local area (albeit I have concluded above this is most unlikely after so long), he could not expect effective protection from the local police.’

6.5   The Judge  accepted  this finding.   However, notwithstanding this, the applicant’s case failed because, amongst other things, the finding was that the level of real risk to the applicant was very low and, in any event, even if there was such a risk he could relocate to a place outside his home area.  This point has no merits because the Judge had indeed considered this point.

(2)   Detailed Reasons argument

6.6   This point is plainly not arguable in the light of the Judge’s decision.

7)  Disposition

7.   There is no prospect of success in the intended application for judicial review and the appeal is dismissed accordingly.