KHURSHED ALAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL375/2017

[2018] HKCFI 169

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 375 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 came to Hong Kong on 28 April 2007 for the first time.  He came back on 12 May 2007 for the second time and was permitted to remain for 14 days again but this time he overstayed in Hong Kong.  He was arrested by the police on 13 October 2007 and lodged a torture claim on 24 October 2007.  This later became a non‑refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 22 May 2015 and 29 December 2016.

2.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 6 July 2017.  The applicant filed a notice of application for leave to apply for judicial review on 10 July 2017 and requested an oral hearing which was set down for 31 October 2017.  The applicant was sent a notice of hearing dated 29 August 2017 by both ordinary and registered post to the same address supplied by him in his application.  The registered post was returned to the Judiciary unclaimed.  The applicant was absent on the date of the hearing and the mobile phone number he supplied with his application was called three times during that morning with no response.  I proceeded to consider his application on the papers.

3.  The basis of his claim was that if he was to return to Bangladesh he would be harmed or even killed by Rahman or members of the Awami League (“AL”) because he had left that party to join the opposition party the Bangladesh Nationalist Party (“BNP”) and harmed or even killed by the Bangladeshi police or the Rapid Action Battalion (“RAB”) because of his involvement in a political murder.  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 intend to summarise it here.

4.  The applicant joined the AL in 1996 when a student.  By the end of that year he had a dispute with the vice president, Rahman, of the Comilla area who had promised him a position in his committee but reneged.  So the applicant joined the BNP with the assistance of a Member of Parliament, Kaikobad.  In 1997, the applicant and seven or eight people led by Kaikobad attacked Abdul Majid who was shot dead.  The applicant fled to Dhaka as a wanted person.  For the next 10 years he moved around between two places undetected and not harassed by any authorities; certainly not arrested for any involvement in this crime.

5.  The applicant believed his name was on a secret target list of the army and the RAB.  In 2006 they were rounding up people who were involved in political wrongdoings.  The applicant was worried they would catch him and kill him.  He arranged to leave Bangladesh and took a direct flight to Hong Kong, arriving on 28 April 2007.  In 2008, the AL became the ruling party so he was sure the RAB and the AL would still be looking for him.

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 treated the appeal/petition as a rehearing.  He correctly set out the law and the key legal principles as well as all the relevant authorities applicable to the four grounds.  He considered the burden of proof and standard of proof as well as setting out the applicant’s evidence.  He assessed the quality of his evidence and found nothing that would amount to any physical or mental injury or torture.

8.  The applicant had no evidence he was wanted by the police and in fact, according to his own facts he had never been contacted directly or indirectly by the police or RAB in the 10 years between the alleged murder of Majid and him leaving Bangladesh.  The core of his case was based on bare assertions, speculations and hearsay.  The applicant left Bangladesh on his own passport without any trouble through Immigration.

9.  The applicant had never reported to the police or taken any action to find out whether he was wanted by any authorities.  The adjudicator considered relevant and up-to-date country of origin information and made a finding that if he returned home there was sufficient state protection.  The government had taken steps to improve police corruption.  If he was to be investigated for a criminal offence, there was no evidence to show he would be tortured or ill‑treated.

10.  The adjudicator considered the torture risk in the definition of torture according to section 37U(1) of Cap 115.  He found no elements of that section were proven and the torture risk claim failed.

11.  As far as the persecution risk was concerned, the adjudicator found the applicant had failed to show that he had a well-founded fear of being persecuted for any Convention reason.  Persecution must be distinguished from punishment for a common law offence, even if he was actually found wanted for murder.  Persons fleeing from prosecution or punishment for such an offence are not normally refugees as stated in the Handbook of UNHCR.  The persecution risk claim failed.

12.  As far as the BOR 3 risk is concerned the adjudicator found the applicant had never sustained any injury that attained a minimum level of severity nor had he shown there were substantial grounds for believing that if refouled, there would be a real risk or substantial grounds for believing that he would be subjected to a real risk of torture and CIDTP.  The BOR 3 risk claim failed.

13.  The Director by his Notice of Further Decision dated 29 December 2016 informed the applicant that he had failed to establish a personal and real risk of absolute and non-derogable rights under the BOR 2 being violated upon his return to Bangladesh.  This decision came after the oral appeal hearing.

14.  The applicant had earlier been given an opportunity by the Director to provide additional information or facts to support a BOR 2 risk claim if he wished within 14 days but no such additional information or facts were submitted.  Since no new information or evidence was forthcoming, the adjudicator found it unnecessary to hold another oral hearing.  He was right to say there is no absolute right to an oral hearing and it would depend upon the circumstances of each case and the nature of the decision to be made.  In this situation, there would be no dispute in facts and in law nor any issue with credibility that would require an additional oral hearing.

15.  The adjudicator considered the subsections/provisions of BOR 2 and found the applicant’s claim did not fall into any category.  He confirmed the decision of the Director; there was no evidence of his personal and real risk of absolute and non-derogable rights under Hong Kong BOR, including his right to life under BOR 2, being violated upon his return to Bangladesh.

Leave to apply for judicial review

16.  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 evidence, material and claim carefully.

17.  The applicant complains that he was ill-prepared for his appeal hearing because the appeal bundle was in English and given to him only days before the hearing.  However, there is no record of any complaint by him to the adjudicator.  There would have been an interpreter to assist him. He elected to give evidence and would have had an opportunity to raise any queries if he was confused as he alleges.  I find no merit in this ground that there was procedural unfairness.

18.  The applicant complains that he answered all questions honestly and is aggravated that his credibility was found questionable but a reading of the decision shows that the Director made no finding as to credibility which means he found him in general, a witness of truth.  There is no merit in this ground.

19.  Lastly, it is alleged the adjudicator relied on information that was not officially recognised, hearsay or out of date.  There are no other particulars in this ground.  Again, a reading of the decision and the references shows otherwise and there is no merit in this ground.

20.  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.

21.  In my judgement the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave 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