SHEIK RAZAUL v. IAN CANDY, ESQ.

HCAL397/2017

[2018] HKCFI 104

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 397 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 19 October 2006 and permitted to remain until 2 November 2006.  He did not depart and overstayed in Hong Kong and he was arrested by the police on 24 March 2007.  After his arrest he lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“Director”) on 23 September 2014 and 8 February 2017.  

2.  The screening process was long and drawn out with the applicant never actually attending a screening interview with the Immigration Department claiming on each occasion to be unfit to illness.  Eventually the Immigration Department sent him a list of written questions that he answered on paper.  Ultimately, an exceptional screening interview was arranged for the applicant which he attended with an assigned duty lawyer.

3.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected it on 16 June 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 13 July 2017 and requested an oral hearing which was set down for 7 November 2017.  The applicant did apply for legal aid but it was refused.  The applicant did not appear on the hearing date and when the assigned interpreter called his mobile phone the applicant answered and said that he had had received the notice of hearing letter but had forgotten the hearing date and would not be coming to court that day.  The court received no further correspondence from the applicant thereafter.  I therefore proceed to consider the applicant’s application on paper.

4.  The basis of the applicant’s claim is that if he were to return to Bangladesh he would be harmed or killed by members of the local Bangladesh Nationalist Party (“BNP”) of his area.  The applicant’s brother was a member of the opposition party the Awami League (“AL”) and an involved member.  The applicant participated in organised meetings and rallies of the AL.  His brother was well-known in his area leading the applicant to become a target and enemy of the BNP.  The Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in detail and in full in their decisions therefore I only intend to summarise it here.

5.  The applicant was born in 1983 and received nine years of education.  After that he worked as a part-time office boy.  His family supported the AL and he, although not a member participated in party activities and hung around the AL’s local clubhouse.  His brother, SJ was a member and a party member of the steering committee of Joynal Hazari who was a member of Parliament, therefore much more involved.  After the BNP came into power in 2001, the applicant’s trouble began and BNP people in his area threatened him every time he left home.  He was beaten/bullied frequently and threatened often.  He never reported the harassment to the police as he felt it would be futile.

6.  On one occasion, on the second day of Ramadan after he left the mosque the applicant was more seriously beaten by a group of BNP people with hockey sticks and rods until he was unconscious.  He woke up in hospital where he remained for a week until he ran out of money.  He did report this attack to the police but the police officer did not register his complaint, telling him as the BNP was in power he would have to consult his seniors.  The police later asked for a bribe to investigate which the applicant could not pay.  The applicant did not ask the AL to help and his explanation was because he was not a member of the AL.

7.  The applicant was attacked again for a second time not long after the first attack by the same people and threatened.  He says he assumed the threat was that his brother should be in custody and if not then the applicant had to leave the country.  The applicant told the adjudicator of the TCAB they had firearms.  After this attack the applicant left home in December 2005 to stay with his aunt in Chittagong some 145 km from his home village.  Whilst there his family home was attacked on several occasions by BNP people; even gunshots were fired.

8.  In May 2006, his aunt asked him to leave because her family had received threats but she did not disclose the details.  The applicant moved around in Chittagong and in Dhaka until October 2006 until he left for Hong Kong on 19 October 2006.  He said during that time BNP people nearly found him whilst he was in hiding. Since he arrived in Hong Kong his brother had been detained by the police interrogation on many occasions and even abducted in 2012 and 2014, presumably by BNP people.  He has since disappeared. The applicant does not believe he can live anywhere else in Bangladesh, for example Dhaka where he has no relatives and no one to look after him.

9.  The adjudicator, 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 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 adjudicator of the TCAB treated the appeal/petition as a rehearing.  The applicant had his rights explained to him with the assistance of an interpreter and he answered questions.  The adjudicator correctly set out the law and the key legal principles relevant to the analysis of the four applicable grounds.  He also considered the applicant’s oral evidence as well as the previous statements he had given and considered his credibility.

11.  The adjudicator found significant inconsistencies and discrepancies in his evidence and information provided which rendered his credibility questionable.  The adjudicator set out in his decision in full the significant inconsistencies and discrepancies which led to this conclusion.  He gave him an opportunity to explain some of the serious discrepancies and concluded that he was inventing additional evidence in the hope of bolstering his claim.  He found the applicant’s evidence inherently implausible in some parts, unrealistic and unconvincing in general so that even to the low standard applicable, the applicant’s evidence was generally unreliable and incredible.  He did not find the applicant a genuine claimant.  Moreover, much of his evidence was hearsay which, is not in itself inadmissible.  However, the weight which can be attached to such evidence is, by its nature, greatly reduced.

12.  The adjudicator was not convinced the applicant was targeted or harassed by BNP members or even assaulted by BNP people on the two occasions he claimed.  He found that even if he had established he had been assaulted as he claimed, he never suffered any injury of the degree of severity required to support a claim for non-refoulement protection. In view of that finding, there was no real chance the applicant would be subjected to any form of ill-treatment if he was refouled to Bangladesh; there was no future risk.

13.  As a result of the adjudicator’s findings, he went on to conclude that the applicant had failed to establish he would face a real risk of persecution, a real risk of torture or CIDTP under Article 3 of HKBORO, a real risk of being deprived of his right to life under Article 2 of HKBORO and a real risk of torture as defined in section 37U(1) of the Immigration Ordinance if he is refouled to Bangladesh.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

14.  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 analysed 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.  There are eight grounds in this affirmation and most contain no particulars. Those include ground 5, 6, 7 and 8.  As an example, for ground 6, it was never part of the applicant’s case there was a need for psychological or psychiatric evaluation.  For ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion.  There was no complaint made to the adjudicator concerning the performance of the lawyer assigned.  These grounds have no merits.

16.  In grounds 1, 2, and 4 it is submitted the adjudicator failed to consider relevant and up-to-date Country of Origin Information (“COI”) research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning.  The adjudicator actually made no in-depth reference to any COI material or the concept of State protection.  He had no need to, considering the reason he dismissed the applicant’s appeal.  These grounds are not arguable.

17.  Ground 3, a failure to evaluate and make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights, has no merits.  The adjudicator did not believe the applicant was a witness of truth; not a genuine claimant.  He had no need to go on to evaluate or make such a finding of fact in relation to any violations of human rights in Bangladesh under such circumstances.  There is no merit in this ground.

18.  The applicant complains he was not given sufficient time to prepare for his appeal, the appeal bundle was in English, he was confused during the appeal and felt the hearing was unfair to him.  I was satisfied the applicant had the assistance of an interpreter and had the procedure of the hearing explained to him.  He made an election to give evidence.  There was no record of any complaint or comment that he was confused, ill-prepared, needed more time or unhappy to proceed with the appeal.

19.  There is a complaint the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is misleading and inaccurate because the Director rejected it on 8 February 2017 before the oral hearing conducted by the adjudicator on 15 March 2017.

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