MOHAMMAD PALASH v. WILLIAM LAM, ESQ AND ANOTHER

HCAL 120/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 120 OF 2017

___________________

___________________

___________________

J U D G M E N T

___________________

1.  This is an application for leave to apply for judicial review. The applicant is a Bangladeshi national who said he was refused entry into Hong Kong by Mainland Chinese Immigration officers one day in March 2012 so he then claimed he entered Hong Kong illegally 10 months later on 7 January 2013. He remained undetected for eight months until he was arrested. On 13 September 2013, three days after his arrest he lodged a non-refoulement claim which was rejected by the Director of Immigration (“the Director”) on 5 April 2016 and 12 December 2016 (the latter relating to his BOR 2 risk). He lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal/petition on 29 March 2017. The applicant filed a notice application for leave to apply for judicial review on 6 April 2017.

2.  At the beginning, the basis of the applicant’s claim was that if he were to return to Bangladesh he would be tortured or even killed by Rashid from the Awami League (“AL”) and the police because he was involved in the murder of Raihan, Rashid’s brother.  The applicant was a member of the Bangladesh Nationalist Party (“BNP”).  By the time of his appeal/petition, his claim had expanded due to the fact he had been tried in absentia with others, convicted of the murder of Raihan and sentenced to life imprisonment.

Background

3.  The AL have been the ruling party in Bangladesh since the end of 2008 and the BNP the opposition party.  The applicant and his family have always been supporters of the BNP; he joined the student wing in around 1999.  He had several run-ins with Rashid in 2007 and 2008 when Rashid once asked the applicant to switch allegiance and work for him and his father, a senior leader of the AL, but the applicant refused.  After the AL won the election, Rashid and many AL members approached the applicant and boasted Rashid himself would win the next election which led to a chaotic confrontation.

4.  Nothing specific happened until about 2011 when in early October at a Hindu festival Raihan, Rashid’s brother told the applicant and his group they had to sit at the back which insulted them and made them angry.  This group lay in wait and attacked Rashid and Raihan after the festival.  The applicant said he attacked with bare fists whilst everyone else had weapons.  All but one had bamboo sticks whilst his friend Shirajul had an iron rod.  The applicant beat Raihan with his bare hands but unexpectedly Shirajul hit Raihan’s neck with the iron rod and he fell to the ground.  The applicant’s group then all fled.  Raihan died from this neck injury.

5.  Immediately after this incident the applicant did not return home but went to a friend’s home 3 km away to hide.  The next day he was told that Raihan had died.  Feeling very afraid of retribution from AL members and Rashid the applicant went to Dhaka (a 2‑hour bus journey) to stay with his cousin Golam.  Golam’s wife told him to go the next day to stay with her family in Rangpur (a 12‑hour bus journey) to put more distance between him and his village so it would be harder for Rashid to locate him.

6.  When he arrived, the applicant called his family who told him that Rashid’s family had filed a police report against him and Shirajul accusing them of murdering Raihan.  The police had been several times to the applicant’s home with an arrest warrant looking for him.  The applicant’s father had told the police he had no idea of his whereabouts. Shirajul told the applicant over the phone that he too had gone into hiding but did not tell the applicant of his whereabouts.  His family had told him the police had come looking for him as well.  The applicant hid in Rangpur for four months until February 2012.

7.  The applicant decided that since there was an arrest warrant and a police case filed against him he wanted to escape from Bangladesh and asked his father and Golam to assist him.  Golam bribed Bangladeshi Immigration officers and made the necessary arrangements for the applicant to leave the country with him on 24 February 2012.  The applicant flew to Mainland China.

8.  The applicant did not turn himself in and explain what happened that night and fled the country despite knowing he was a wanted person because he was sure if he did surrender to the police he would be tortured in their custody.  He would not get a fair trial.  He says the police are very corrupt and easily bribed; especially by members of the ruling political party, the AL.  He would be tortured until he confessed to the murder of Raihan.  The applicant suggests the alternative scenario is that the police would have handed him over to Rashid for money and if that happened he would have been tortured to death by Rashid.  The applicant submits he had no alternative but to leave the country even though he did not murder Raihan.

9.  The adjudicator of the TCAB, 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 (“HKBOR”) 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 Director considered the applicant’s claim, evidence, Country of Origin (“COI”) material and found the level of risk of harm from members of the AL, Rashid and the police if he were to be refouled to Bangladesh was low.  The applicant admitted his role in the attack on Raihan that led to his death.  The victim’s family reported the matter to the police who must investigate it.  The applicant immediately fled the scene, his village and then the country knowing full well he was a wanted person.  The Director found according to the available COI he referred to and was referred to by the applicant’s legal representative that there was reasonable State protection available to the applicant if returned to Bangladesh.

11.  The Director found no indication from available COI that he will be denied a proper police investigation or a fair trial in Bangladesh.  There was information to show the judiciary had a fair and just system in operation and there were avenues for the applicant to seek legal assistance and representation.

12.  The Director also considered the applicant was a fugitive from justice as opposed to a Refugee who is a potential victim of injustice.  The applicant is a person fleeing from persecution or punishment and unless there is evidence to indicate that the possible legal sanction is so disproportionate that it amounts to torture then fleeing a country in order to avoid arrest and/or a court case does not entitle a claimant to non‑refoulement as legal sanction is excluded from torture.  Even though the applicant says it was another who killed Raihan, he is still a fugitive from justice.  Since the Director found from the COI material there was available protection under the due process of the law, the applicant’s fears are unsupported bare assertions.

13.  The Director applied his findings to all four applicable grounds and found the applicant was unable to show that his claim warranted non‑refoulement protection on the grounds of torture and/or persecution and/or CIDTP.  He found the applicant could not succeed on any ground.

New evidence before the Torture Claims Appeal Board

14.  The applicant had the assistance of duty lawyer scheme and legal representation to appeal that decision to the TCAB and an oral hearing was conducted.  Several days before the appeal hearing the applicant obtained new evidence relevant to his claim and submitted a notice to adduce new evidence to the TCAB.  A friend obtained these documents on his behalf through a lawyer in Bangladesh at his request.  When the Director rejected his claim the applicant decided to follow up on the murder case against him in Bangladesh and obtain any update and documents which then led to the new evidence.  Counsel for the applicant then applied to adjourn the appeal hearing for the applicant to submit that same new evidence to the Director for his fresh consideration; essentially to go back to the Director and have his claim reconsidered again.

15.  The new evidence consisted of two documents, the first a charge sheet dated 13 December 2013 and a court document dated 25 February 2016 which indicates that the applicant and three others have been convicted in absentia for the death of Rashid and sentenced to life imprisonment and a fine of 2000 taka.  The adjudicator of the TCAB refused the adjournment and allowed in for his consideration the new evidence.  Hearings before the TCAB are de novo hearings/a rehearing therefore the submission and consideration of new evidence are proper and appropriate.

16.  The basis of the applicant’s claim was now broader and included the fact he was convicted in absentia and sentenced to life imprisonment meaning he was denied a fair trial and had no representation at that trial.  He submitted he was totally unaware he was tried, convicted and sentenced.  It was submitted, there was no possibility of a retrial if he returned to Bangladesh which amounted to a flagrant denial of justice.  If he had to serve a life sentence, the appalling conditions in prison there are equivalent to CIDTP.

The TCAB adjudicator’s decision

17.  Despite the new evidence, the adjudicator’s findings echoed the Director’s.  The adjudicator found that on the applicant’s own evidence, including his new evidence, he fled Bangladesh as a fugitive from the law and a fugitive is not a Refugee.  Both the Director and the adjudicator quote from the Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status of the UNHCR 1979 Chapter II para 56.  The applicant admitted he was involved together with others in an assault which resulted in a death, he immediately fled the scene, avoided subsequent investigation by the police and the due process of the law although, he argues that does not exist in Bangladesh.  The adjudicator stated that unless the legal sanction was so disproportionate that it amounted to torture then the applicant is not entitled to be classified as a Refugee and he found that it was not here.

18.  The adjudicator, in his decision set out the law and key legal principles of all four applicable grounds as well as the COI information he referred to and relied on.  As far as the torture risk is concerned, the adjudicator considered the definition of torture under section 37U(1) of the Immigration Ordinance and found the applicant’s evidence relating to perceived risk of torture by the police if refouled relied on bare assertions and assumptions.  Any evidence relating to the perceived risk of torture by Rashid would not constitute torture under this section because it must be inflicted by someone acting in the official capacity of the state which he is not.  The adjudicator found the appeal failed under torture risk.

19.  The adjudicator found the appeal failed under BOR 3 because there was no evidence he would face a genuine and substantial future risk of being subjected to severe ill-treatment if refouled to Bangladesh.  The adjudicator refers to COI material he finds shows conditions in Bangladesh prisons although not ideal do not reach the definition of torture or CIDTP.  He found there to be no evidence of any risk to his right to life which meant his appeal failed under BOR 2.  He also found that his claim fell far short of and did not place him within the criteria of persecution according to the Refugee Convention which meant the appeal failed under the persecution risk.

20.  The applicant produced news articles to support his submission the police did mistreat people in detention and during police investigation.  The adjudicator’s view is that those articles did not pertain to the applicant personally.  His view is that any feared brutality based on the articles and his belief is speculation.  Speculation cannot be treated as the truth or given full weight unless there is more.

21.  The adjudicator makes no comment or finding as to the veracity of the new evidence, in particular, the Bangladesh court verdict document but seems to accept its contents.  However, it is not clear whether it is a full transcript of a court verdict as the applicant seems to suggest.  In fact, it starts with the words “the brief description”.  It reads more like a summary. Moreover, it is not a certified translation of the court document so its accuracy is questionable.  In fact, upon a reading of it, there are obvious translation issues.  The police charge sheet is not certified either.

Leave to apply for judicial review

22.  In the amended notice of application and supporting affirmation there are six grounds for seeking leave;

(1)   Trial in absentia provision in Bangladesh law being incompatible with right to a fair trial pursuant to HKBOR Art 11(2)(d);

(2)   no possibility of retrial or fresh determination if refouled;

(3)   no proof of notice of hearing served before trial in absentia;

(4)   unlawful sanction of life imprisonment is CIDTP/BOR 3;

(5)   life imprisonment/prison conditions amounts to CIDTP; and

(6)   the adjudicator’s refusal to adjourn and remit claim back to Director unfair.

Ground 1

23.  In Bangladesh, the law there allows a trial to be held in an accused’s absence if he is a fugitive offender after the compliance with certain requirements.  If a court believes an accused has absconded so that he cannot be arrested then the court “taking cognizance of the offence complained of shall, order published in at least two national daily Bengali newspapers having wide circulation, direct such person to appear before it within such period as may be specified in the order, and if such person fails to comply with such direction, he shall be tried in his absence”.

24.  Counsel for the applicant, Mr Wan, argues this provision above is incompatible with HKBOR Article 11(2)(d). He submits this is because there is no specific provision in the code of criminal procedure of Bangladesh for a person convicted in absentia to automatically have a retrial or fresh determination of the law and merits of the criminal case. Therefore, there is a prima facie case that the applicant would have to serve the life imprisonment without the possibility of a retrial which he says constitutes a violation of the applicant’s right of guarantees of protection against CIDTP under BOR 3.  He relies on Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at paragraph 160 “a sufficiently established threat of Article 3 being violated by the receiving country if the deportee should be sent there constitutes a ground for restraining the Hong Kong government from proceeding with the deportation.”

25.  I have considered his submission that Article 11 of HKBOR is not compatible with the Bangladeshi provision for a trial in absentia where a court is satisfied an accused is a fugitive and absconded.  However, Mr Wan agreed in the hearing he had no expert evidence on Bangladeshi law and therefore is in no position to make any submissions on what legal recourse the applicant has in Bangladesh by way of appeal or application for retrial if refouled.  He cannot say with any certainty what legal rights the applicant has or does not have when he returns.  Therefore, there is no evidence in this situation that shows, at least, ill-treatment of the minimum level of severity required to amount to torture or CIDTP if refouled.  Ground 1 is not reasonably arguable.

26.  It does seem however; the applicant will have legal recourse when he returns to Bangladesh.  Defence counsel has referred me to an English Asylum and Immigration Tribunal case, SH v Secretary of State for the Home Department 2008 UKAIT 00076in support of another ground but the applicant in that case was sentenced to seven years imprisonment in absentia in Bangladesh and that tribunal noted at paragraph 11 “the evidence indicated that under Bangladesh law it was not possible for the appellant to take legal steps to quash his convictions until he arrived back in the country. Given that he had absconded, any kind of bail pending an appeal against conviction and/or sentence would be unlikely.  Ms Brown referred to Bangladesh penal provisions showing that appeal against conviction and sentence was possible and pointed out that as the appellant already had an advocate acting for him he would have access to appeal processes.”. It would seem according to discussion in that authority that he has legal recourse if he returns home.

Ground 2

27.  Mr Wan’s admission that he has no expert evidence on Bangladeshi law affects this ground.  The bold assertion that the applicant does not have the possibility of a retrial cannot stand without such evidence.  Mr Wan submitted that they had no time to get such evidence before the TCAB hearing but that cannot be said to be true for this application.  There was plenty of time to prepare for this hearing and obtain such evidence.  This ground is not reasonably arguable.

Ground 3

28.  The applicant submits the accused must have knowledge of the criminal proceeding and date of trial before being tried in absentia.  It is submitted the accused’s waiver of the right to be tried in one’s own presence has to be established in an unequivocal manner.  The applicant submits the flagrant denial of justice test means it is for the Director to dispel the doubt and prove the service of notice of the hearing and charge sheet.  The applicant claims no knowledge of the charge laid against him, the trial or the conviction.  He was in Hong Kong during that time.  In short, the applicant produces documentary evidence of charges and a trial which he submits the Immigration Department now have to prove were served properly under the Bangladesh Criminal Code; advertised in advance of the trial.

29.  It is submitted the applicant’s waiver of the right to be tried in one’s own presence has to be established in an unequivocal manner but unlike the authority quoted by Mr Wan, Colozza v Italy ECHR 12 February 1985, in this case, it is not the government seeking to arrest or extradite the applicant.  The Bangladeshi government do not seek his return. If they were, they would be well placed to produce evidence of their notice in two national daily newspapers of his trial and prove his trial in absentia.  Mr Colozza had no inkling of the opening of criminal proceedings against him and the ECHR found he did not waive the exercise of his right to appear nor find he actually absconded.

30.  It flies in the face of common sense to submit this applicant had no knowledge of what was coming or likely to happen, he admitted as much in his notice to adduce new evidence that he deliberately shut his mind to the whole episode or reason he fled his home country.  He says, only when the Director rejected his claim did he ask his mother to enquire about the police report and case.  It is his own evidence that one of the reasons he fled is because he knew of the police report and that the impending investigation meant he would likely be detained and tried.  It cannot be said he had no inkling; he was well aware of the likelihood of proceedings being instituted against him.  This ground is not reasonably arguable.

Ground 4

31.  The applicant submits the adjudicator erred in law by finding that a term of life imprisonment upon a conviction in absentia was lawful.  It was submitted it was a flagrant denial of justice, it destroyed the essence of a fair trial ( HKBORO Arts10 & 11, ICCPR Art 14, ECHR Art 6) and was therefore unlawful. It would even fail to satisfy the test for surrendering a fugitive under the Fugitive Offenders Ordinance, Cap 503.  It was argued a term of life imprisonment would be a violation of the applicant’s rights under Article 3 of HKBOR because there was no possibility of a retrial upon refoulement.

32.  There is no merit in this ground. Firstly, I repeat, the bold assertion that the applicant does not have the possibility of a retrial cannot stand without expert evidence of Bangladeshi law.  Secondly, this is not a case where the Bangladeshi government have sought extradition of the applicant; the Fugitive Offenders Ordinance does not apply. Life imprisonment as a sentence for murder is not an excessive punishment or so disproportionate in either domestic law or international law that it amounts to torture.

Ground 5

33.  The applicant submits life imprisonment in a Bangladeshi prison amounts to CIDTP.  The adjudicator ignored the harsh and unbearable prison conditions; the dire situations amounted to torture.  In his decision, the adjudicator set out the Country of Origin information (“COI”) he referred to and considered that whilst the prison conditions in Bangladesh were “nowhere near optimum” they did not amount to torture or CIDTP.

34.  Defence counsel has referred me to an English Asylum and Immigration Tribunal case, SH v Secretary of State for the Home Department 2008 UKAIT 00076which held in 2008, nearly 10 years ago, that prison conditions in Bangladesh, at least for ordinary prisoners, did not violate Article 3 ECHR.  Defence counsel makes much of the overcrowding situation in prisons but as pointed out in SH in para 20 “in no case in which Strasbourg has found prison conditions to violate Article 3 has overcrowding been seen as sufficient on its own to give rise to a violation; rather it has been the co-existence of overcrowding with other significant exacerbating circumstances;”.  Those would include serious abuses of prisoners’ rights.  As an example, the prison conditions which led the European Court of Human Rights to find a breach of Article 3 in Kalashnikov v Russia 2002 ECHR 596 were where the prisoner shared a cell not only infested with pests but with other people suffering from diseases like tuberculosis and syphilis.

35.  The adjudicator referred to up-to-date and relevant COI material.  It is well settled that the Article 3 threshold is a very high one; this is of particular importance when evaluating many facets that make up prison conditions.  Ill‑treatment involves actual bodily harm or intense physical or mental suffering and must attain a minimum level of severity if it is to fall within the scope of Article 3.  However, treatment which humiliates or debases people, which disrespects or diminishes their human dignity or arouses feelings of fear, anguish or inferiority and is capable of breaking their moral and physical resistance may be characterised as sufficiently degrading, see Pretty v United Kingdom (2002) 35 EHRR 1, 33 at para 52.  In the SH case, (following Soering v United Kingdom 1989 ECHR 14 para 100) the tribunal pointed out the assessment of this “minimum” depends on all the circumstances of the case; such as the age, sex, state of health, mental condition of individual applicants and in that case, the duration of the prison treatment.

36.  For prison conditions to reach this threshold there must be positive evidence of torture or inhuman or degrading treatment or punishment.  Overcrowding would certainly not be enough on its own. Imprisonment will involve an element of suffering and humiliation but for it to be inhuman or degrading there must be evidence that it will go well beyond and far exceed the unavoidable level inherent in detention.  There was no evidence to suggest or support this was the case now in prisons in Bangladesh.  The adjudicator was satisfied that the prison conditions in Bangladesh did not amount to torture or CIDTP.  This ground is not reasonably arguable.

Ground 6

37.  The applicant submits the adjudicator’s decision to proceed with the appeal and not allow the adjournment was procedurally unfair and/or did not meet the high standards of fairness required of him when informed of the applicant’s new evidence.  By refusing to adjourn the applicant’s new claim back to the Director he deprived the applicant of two opportunities to have his new claim assessed; first by the Director and second by an appeal to the TCAB if the Director refused it.

38.  The applicant also submits the failure to adjourn deprived him of an opportunity to obtain further and better evidence on Bangladeshi law, such as expert reports.  However, this is misleading as I note from the applicant’s written supplemental submission to the adjudicator that this was not one of the grounds put forward to support an application to adjourn.  There was no mention of an intention to obtain further and better evidence or expert evidence on Bangladeshi law.

39.  The Director rejected the applicant’s claim in April 2016 and the applicant would have filed an appeal/petition within 14 days.  He was given an appeal hearing date of 24 January 2017 and was always legally represented.  After his claim was rejected by the Director he asked a friend in Bangladesh to obtain court documents through a lawyer approximately 10 days before his appeal hearing.  Four days before his appeal hearing, he quite properly filed a notice to adduce new evidence to the TCAB.  The adjudicator can consider new evidence because the hearing is a de novo hearing.  

40.  The adjudicator did just that, there is no reason why he should not accept and consider the new evidence in the rehearing/de novo hearing; I see no procedural unfairness, impropriety nor prejudice.  I can see no reason why this decision means the adjudicator has not maintained a high standard of fairness.  This ground has no merit.

41.  In fact, the legislation provides for a situation where an applicant can lodge a new or subsequent claim when there has been a significant change in his circumstances since his previous claim was finally determined by the director; see S37ZO and S37ZP of the Immigration Ordinance Cap. 115. The legislation places stringent limits on subsequent claims but nevertheless provides for the possibility of a new claim. The more appropriate course of action may have been for this applicant to have considered this course of action when he received the new evidence.

Conclusion

42.  I do not find any ground that shows there was an error of law by the adjudicator.  Nor do I see any evidence of procedural unfairness or a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  None of the grounds were arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676.  There is no realistic prospect of success, therefore I refuse leave for judicial review.