RE O.R.

HCAL 55/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 55 OF 2016

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J U D G M E N T

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1. This is an ex-parte application by the Applicant for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dismissing his claim for Non-refoulement and the decision of a Member of the Torture Claims Appeal Board / Adjudicator of the Non-Refoulement Claims Petition Office (“the Adjudicator”)[1] dismissing his Appeal / Petition.

BACKGROUND

2. The Applicant is a Bangladesh national. 

3. On 5 September 2009, he came to Hong Kong by boat.  Prior to that, he had been to Dhaka, Laos, Vietnam and Mainland China. On the following day he was arrested as an illegal immigrant.  On 9 September 2009, he lodged his torture claim and was on 12 September 2009 released on recognizance. 

4. His claim was considered by the Immigration Department under the Unified Screening Mechanism on all applicable grounds, which include :

(1)  Risk of being tortured as defined in Part VIIC of the Immigration Ordinance[2] (torture risk);

(2)  Risk of being subjected to torture or to cruel, inhuman or degrading treatment or punishment (“CIDTP”) contrary to Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance[3] (BOR3 risk); and

(3)  Risk of persecution with reference to the non-refoulement principle under Artilce 33 of the 1951 Convention relating to the Status of Refugees (persecution risk).

By a Notice of Decision dated 30 January 2015, the Director rejected the claim. 

5. The Applicant lodged an appeal / petition (“appeal”) against the decision of the Director.  There was an oral hearing on 9 October 2015.  By the Decision dated 29 February 2016, the Adjudicator rejected the Applicant’s appeal.

6. On 8 March 2016, the Applicant filed an application for leave to apply for judicial review against the decisions of the Director and the Adjudicator.

RELIEF SOUGHT

7. The Applicant seeks the following relief :

(1)  an Order of Certiorari to bring up and quash the said decision of the Director;

(2)  an Order of Certiorari to bring up and quash the said decision of the Adjudicator;

(3)  an Order under O.53 r9(4) to remit the claim to the Torture Claims Appeal Board for an oral hearing before a different Board member;

(4)  an extension of time under O.53 r4(1) to make this application;

(5)  an oral hearing if leave is not granted on paper (and thus this hearing);

(6)  such further and / or other relief the court may provide; and

(7)  an Order for costs.

GROUNDS OF REVIEW

8. The Applicant appeared in person.  The following grounds of review were put forward :

(1)  Failure of the Adjudicator to carry out sufficient research and inquiry into the updated country of origin information papers (“COI”) conditions, both of wide and overall general relevance and on the circumstances of the Applicant;

(2)  Failure of the Adjudicator to take into account highly relevant information in the cited COI, there was cherry-picking of the Adjudicator and he had relied and put weight on outdated COI publications instead of updated information available;

(3)  Failure of the Adjudicator to evaluate and make a finding as to whether there was a consistent pattern of gross, flagrant or mass violation of human rights in Bangladesh;

(4)  Failure of the Adjudicator to analyse and assess whether state protection exists in Bangladesh and misdirection on law of the Adjudicator as to the extended meaning of state protection;

(5)  Error of the Director (in the Notice the Applicant stated “the Respondent”, upon clarification at the hearing it was confirmed that the Applicant meant the Director) in taking into account and putting weight on irrelevant consideration or making consideration which was incorrect, inaccurate or not based on fact or facts not reasonably inferred, as well as failing to take into account and put weight on facts and inference that were favourable to the Applicant;

(6)  Failure of both the Director and the Adjudicator to call psychological and psychiatric evaluation and report;

(7)  Application of the Adjudicator of incorrect standard of proof;

(8)  the decisions of both the Director and the Adjudicator are unreasonable; and

(9)  failures of the assigned duty lawyer resulting in lack of and / or insufficient legal representation, as a consequence the Applicant was not afforded a fair procedure.

FACTUAL BASIS FOR THE NON-REFOULEMENT CLAIM

9. The claim based on an alleged danger of being killed by people of Awami League (“AL”) because he could not afford to pay them extortion money.

10. Neither the Applicant nor any of his family members had any affiliation with any political party or government officials in Bangladesh.  However, most people of the village in which the Applicant lived were supporters of AL.

11. The Applicant started to run a rice shop in 2002. On average, he made a profit of about 10,000 Taka a month.

12. The business ran smoothly until 2007.

13. On a day at the end of 2007, around 4 – 5 AL people came to the shop of the Applicant.  They asked for protection money in the amount of 100,000 Taka.  When the Applicant replied that he could not afford, the people threatened him that he would not be allowed to do business in the market and that his shop had to be shut down.

14. He did not make a report the Police because AL was then in power and he feared that he would be physically assaulted if he made a report.

15. In early 2008, around 8 people of AL came to his shop again and demanded the same amount of money.  He was scared and gave them 20,000 Taka.  He asked them not to bother him anymore.  These people, however, demanded 50,000 Taka more and the Applicant responded that he could not afford.

16. He did not make a report since he thought these people having received money would not bother him again

17. Two months later, people of AL came again, with several gangsters.  They demanded 50,000 Taka every month.  The Applicant refused because he could not afford.

18. The Applicant was slapped at his cheeks several times.  The people shouted at him and threatened to kill him if he did not pay.

19. He did not make a report since he did not think the Police would help him.  He also thought those people would not commit more extreme acts to him.

20. People from AL did come again asking for money. When the Applicant did not pay, they took away 10 out of 20 sacks of rice from his shop, each weighing either 50 kg or 100 kg.  He was too scared to protest or say anything to stop them.

21. He did not make a report since he thought having taken so much rice from him those people would leave him in peace.

22. Fifteen days after this incident, several AL people came again, one of them was Abdul Haq (“Abdul”).  Abdul demanded payment of 50,000 Taka, and threatened him otherwise he would be beaten or killed.  He also told the Applicant that he would not be allowed to do business in the market and his shop would be closed.  Abdul slapped him several times.  This was, as stated in the Applicant’s paper, the 5th incident.

23. On the following day, the Applicant made a report to the Police.  He mentioned the name of Abdul without mentioning the involvement of AL people.  He thought if he mentioned AL the report would not be accepted since AL was in power.  He was given a memorandum confirming that the report had been recorded.

24. The Applicant had not checked with the Police progress of the case since he was scared of AL and the gangsters.

25. When he returned to his shop two days later, he found out that everything there was broken, all cash, paddy and rice were looted.

26. On the same day, he received a phone call from an unknown man saying that he had to pay him 50,000 Taka each month if he wanted to do business in the market. He also threatened him that he would kill him since he refused to pay him money. 

27. After that, he did not dare to open his shop again.  He closed his shop.  He did not make a report to the Police since he feared that he would be killed.

28. He escaped to the home of a friend, which is also at Jessore District, where his family was living.

29. He stayed there until the beginning of 2009. Then he stayed at various places of his relatives and friends.  He heard that AL people were looking for him.

30. Having discussed with friends, he decided to leave Bangladesh for Hong Kong since he thought it was no longer safe to stay there.

31. On 21 July 2009, he left Dhaka for Laos by air. Having stayed there for 3 weeks, he took a bus and went to Vietnam.  He stayed there for 3 weeks and then went to Mainland China by bus.  On 5 September 2009, he came to Hong Kong illegally by boat.

32. He did not return to his country since he fears he will be hurt by AL people and the Police.  He came to know that some of his enemies are in good position in AL.

HEARING OF THE APPLICATION

33. For the purpose of this application, the Applicant relied on an affirmation which he filed.  At the hearing, he provided the court with documentary proof of his trade business and his report to the Police.  He also elaborated on his complaints against the decisions and provided more details in relation to Ground 9.

DISCUSSION AND CONSIDERATION

34. It was confirmed by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[4] that the test in deciding whether leave to apply for judicial review should be granted is whether the Applicant’s case is reasonably arguable, in other words, whether it enjoys realistic prospect of success.

35. Against the Adjudicator, the Applicant submitted that he failed to conduct sufficient enquiry as to the updated COI information and had placed undue reliance on out-dated material.  He also criticised the Adjudicator to have failed to make a proper finding on whether there was a consistent pattern of gross, flagrant or mass violation of human rights in Bangladesh and failed to make proper consideration in the light of the concept of extended meaning of state protection.  It was also said that the Adjudicator had applied the wrong standard of proof.  It was submitted that the decision of the Adjudicator is unreasonable.

36. As regards standard of proof, the Adjudicator said this :

“20. The onus is on the Appellant to substantiate his claims, he must show that there are substantial grounds for believing that if he is returned to Bangladesh, he would be in danger of being subjected to torture as defined in the Ordinance.

21. However the standard of proof required is not high, he does not have to show that it is highly probable or even probable that the risk will materialize. He must establish that there are substantial grounds for believing that, if he is returned to Bangladesh, he would be in danger of being subjected to torture; that the grounds for so believing are substantial, they must go beyond mere theory or suspicion; and that such danger is personal and present.”[5]

37. I do not find the Adjudicator erred in considering the case on this basis.

38. As regards consideration of COI, the Adjudicator said :

“I accept that the various country of origin information reports (“COI”) referred to by the Immigration Officer in his Notice of Decision show that corruption and abuse of power have been and continue to be major problems affecting the police in Bangladesh. At the same time it is relevant to note that the government has taken steps to improve the performance of the police, having instituted a Police Reform Program which remains ongoing, the purpose of which is to make the police more accountable, disciplined and professional, and importantly to make it easier for members of the public to report corruption and lack of service. (“Bangladesh Country of Origin Information Report” issued by UK Home Office on 31 August 2013; item 3 of the Appendix to the Immigration Officer’s Notice of Decision). ”[6]

39. The Adjudicator expressly said that he had had regard to the totality of the COI referred to in the Decision of the Director. I am not persuaded that such an extent of consideration of COI material can be criticised as insufficient or cherry-picking.  The COI referred to were all relevant to the consideration of the case.  It has not been shown that there was in existence COI which provide material of such a degree of substance which would have supported a different conclusion.

40. The Director had demonstrated careful and detailed consideration of whether state protection is available.  The Director took into account that a report was made and formed the view that there was no factual indication that the Police had refused assistance or protection to the Applicant.  He was justified to do so.  In his Decision, a list of references was enclosed which shows materials stated in 10 COI papers had been taken into account.  From the dates of the papers, it cannot be seriously suggested that they were out-dated at the time of the Decision.  The Director noted reports on police ineffectiveness and there was fear of retribution in making a report.  On the other hand, the Director also noted reforms of police were on-going and there had been indications of positive results, at the fronts of police professionalism and performance as well as reducing of corruption.  Channels of complaint against the Police had been put in place and there were cases where wrongdoers in the Police were brought to justice.  The Director was of the view that reasonable state protection would be available to the Applicant even if AL people truly act adversely against him after his return.

41. The Adjudicator also observed, on top of what quoted in paragraph 38 above :

“37. When he[7] had finally made a report two days earlier, the police told him that they had made a General Diary entry of his complaint, gave him a memorandum to confirm that his complaint had been recorded in the General Diary, and told him that they would investigate the matter.

38. To all intents and purposes the police had treated his complaint seriously and properly, and undertook that it would be investigated. If he had reported the further developments to them, there is no reason on the evidence to believe that the police would not have duly investigated these further developments, and taken appropriate action to protect the Appellant, if they concluded that this was warranted on the facts as ascertained by them.

39. Having regard to the totality of the COI referred to, and most importantly to the conduct of the police on the one occasion that the Appellant did make a report to them, I am satisfied that if in the future the Appellant were to be returned to Bangladesh, and if he were to be subjected to similar extortionate demands and threats as he experienced previously, that provided he promptly reported all the relevant facts to the police, and sought their protection, he could expect that they would do their duty by duly investigating the reports, and taking appropriate action to protect him, if they considered that the facts warranted it. ”[8]

42. The Adjudicator had analysed the situation with care and made an assessment as to whether sufficient state protection would be provided to the Applicant if he is to return to Bangladesh.  I do not find the Adjudicator had misdirected himself on the law in this respect. 

43. The Adjudicator had demonstrated his careful consideration of all the relevant matters pertinent to the case of the Applicant.  Bearing in mind the criticism as stated in Ground 3, I am satisfied in the particular circumstances of the present case that his analysis and consideration of the case were sufficient.

44. I am also of the view that the material the Adjudicator had taken into consideration was relevant and he had duly assessed the information available before he reached his decision.

45. Overall, it was submitted that the decisions of both the Director and the Adjudicator are unreasonable.  Applying the Wednesbury[9] principle, in my judgment this ground is not made out.

46. The documents which the Applicant produced at the hearing are in relation to his business and his report to the police.  The papers are in the Bangladesh language.  The Applicant confirmed that these papers had been submitted and received in the previous proceedings.  Indeed, the Director had expressly mentioned these papers and given due consideration as to their weight of relevance.  He also confirmed that the content of the document in relation to the report to the Police is the same as what he had already set out in the affirmation filed in support of this application.  The other papers are indeed trade licence of his rice shop issued in various years during the relevant duration.  The Applicant submitted that these papers support the truthfulness of the facts he asserted.  Whilst these papers do to some extent support the factual assertion of the Applicant, in my judgment they serve little additional purpose in this particular case as it is clear from both the decisions of the Director and the Adjudicator that they had considered the case on the basis that the Applicant was running the business as he stated and a report had been made to the Police after the 5th incident.  Credibility of the Applicant was not doubted by either the Director or the Adjudicator. What both of them did was to assess the relevant risk on the basis of factual information provided by the Applicant and formed their own judgment on the merit of the case.  During the hearing, the Applicant reiterated that he has a genuine belief that his life is in danger if he returns to Bangladesh but both the Director and the Adjudicator did not believe him.  It was not that the Director and the Adjudicator did not believe him, it was their judgment that the risk of harm, ill treatment, persecution, torture and other matters of concern to the Applicant is low if he is to return to his country and availability of reasonable state protection would further lower or negate the level of risk.

47. Judicial review is not a further or alternative appeal procedure.  As said by Lam J, as he then was, in TK v Director of Immigration[10], in the context of judicial review of a decision of an adjudicator, the crucial issues are :

(1)  whether the adjudicator committed any error of law in his decision;

(2)  whether the procedures adopted at the hearing of the petition satisfied the high standard of fairness; and

(3)  whether the substantive decision satisfied the enhanced Wednesbury  test.

48. I have considered the Decisions of both the Director and the Adjudicator.  I am not persuaded that any allegation by the Applicant is substantiated in the sense that there is realistic prospect of success.

49. In my judgment, neither the decision of the Director nor that of the Adjudicator can be said to be unreasonable in the Wednesbury sense.

50. Both the Director and the Adjudicator were criticised for failing to call for psychological and psychiatric evaluation and report.  I am not persuaded that on the information put before the Director, the Adjudicator, and this Court, there was sufficient justification to take such a course of action and in any case I do not find that the decisions of both of them can be said to be flaw without calling the reports in question.

51. Ground 9 relates to performance of the duty lawyer assigned to the Applicant.  The Applicant was represented when he attended the interview at the Immigration Department.  He was not represented at the hearing before the Adjudicator.  What the Appellant alleged against the lawyer boil down to these : there was no proper discussion between the lawyer and him and the lawyer failed to clarify with him his case; and that the lawyer failed to challenge the opinion and stand of the Director.  The Applicant did not go to the extent of accusing the lawyer for wrongly put his case to the Director.  What he said was that the lawyer has the duty to represent him in a more forceful manner and he failed to do so.  It is shown on the questionnaire submitted in support of the non-refoulement claim that the form was completed with the assistance of the Court Liaison Officer and he was legally represented in making his claim (the name of the lawyer is the same as the lawyer representing the Applicant during the interview).  There is no allegation that the content of the questionnaire is wrong.  It is noticed from the record of the interview that towards the end of the interview, when the Applicant was asked after the record had been interpreted to him whether he has any addition, deletion or amendment to the record, he answered no and said it is correct.  When the lawyer was asked whether he has any comment he answered no.

52. The Applicant failed to demonstrate that his interests had been jeopardised under the representation of the lawyer and / or that he had been deprived of a fair hearing as a result of the performance of the lawyer.  What the Applicant told the court is not of such a degree of significance which would afford him a public law ground to challenge the decisions.

CONCLUSION

53. The Applicant has not satisfied me that there is a ground based on which there is realistic prospect of success to apply for judicial review against the decisions of the Director and the Adjudicator.  Leave to apply for judicial review, against either the Director or the Adjudicator, is not granted.