KAMRUZZAMAN ANI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL494/2017

[2018] HKCFI 1053

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 494 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

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 claimed to have entered Hong Kong illegally on 17 July 2014 only to be arrested on 20 July 2014.  The applicant then lodged a non-refoulement protection claim which the Director of Immigration (“the Director”) rejected on 21 June 2016 and 2 June 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 1 August 2017.  The applicant then filed a notice of application for leave to apply for judicial review of that decision on 8 August 2017 requesting an oral hearing.  The applicant appeared in person on 10 January 2018 at the hearing having had his application for legal aid refused.

2.  The basis of his claim was that if he were to return to Bangladesh he would be harmed or even killed by members of the Awami League (“AL”) in his home area because they were his political rivals.  He and his family have always supported the Jamaat-e-Islami party (“Jamaat”).  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in detail in their decisions therefore, there is no need to repeat it.

3.  In October 2013 there was a newspaper article that accused AL members of the ruling party of abducting and murdering Jamaat activists.  The Jamaat party organised rallies the following day to protest.  The applicant attended.  The following day the applicant was with two other friends and Jamaat supporters when they were surrounded and attacked by seven AL villagers; one was the chairman of the student wing.  The applicant sustained bruising but one of his friends fractured a leg in the attack.  There was then a general election in January 2014 which the AL won but the BNP and Jamaat did not accept the results and demanded a re-election.  After that members of those parties were frequently attacked by AL supporters.

4.  Immediately after the election the applicant was approached by the same AL villagers and asked if he still supported Jamaat.  Some senior villages intervened before he said anything and told him to leave immediately.  After that confrontation, the applicant moved to his aunt’s home about an hour away.  Two weeks later some men came to his aunt’s home and demanded to search her home for outsiders living there.  She refused to let them in and after a confrontation with some of her husband’s relatives, those people left her home.

5.  The applicant then moved to his grandfather’s home in a nearby village some 90 minutes away.  His father then told him that he had spoken to the chairman of the student wing and negotiated safe passage for the applicant with home.  Not long after he returned he attended a Jamaat meeting.  The very next day, the chairman of the student wing confronted the applicant in the street, told him he knew he had been to a Jamaat meeting and said, unbeknownst to the applicant, his father had promised he would not participate in politics any more.

6.  On 19 February 2014, the applicant witnessed the seven villagers who previously attacked him enter his father’s shop and destroy it.  The applicant was too frightened to go inside and called for senior villagers to rescue his father.  The applicant then immediately moved to his cousin’s home in Chittagong some five hours away for a few days before going to Dhaka to stay with an uncle.  He only stayed there for two weeks because his father asked him to return home because he missed him.  However, he was bored staying indoors and on 9 March 2014 he went out only to be confronted by the chairman of the student wing and other AL supporters who beat the applicant with sticks and a hockey stick.  The applicant was hospitalised for days.

7.  The applicant and his family did not make any police report for this or any previous incidents but on 9 March 2014, the police came to his family home looking for him.  His family denied all knowledge of his whereabouts.  His family were worried that the AL supporters had framed the applicant for some false allegation or crime.  After the applicant left hospital his father took him back to Dhaka where he stayed for four months before leaving Bangladesh on 14 July 2014.

8.  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”).

9.  The adjudicator treated the appeal hearing as a rehearing.  He correctly set out the law and key legal principles for all four applicable grounds as well as the burden of proof and standard of proof.  The adjudicator considered in detail Country of Origin (“COI”) information and made extensive reference to it in his decision.  The adjudicator also set out in great detail the applicant’s evidence, his analysis of it and his findings.

10.  The adjudicator did not believe the applicant was a member of Jamaat.  He did not accept the applicant was a specific target of any AL members.  He did accept that there were occasional altercations between the two political parties in his local area and that the applicant did have a medical admissions document for 9 March 2014 but did not accept it was for injuries sustained in an attack where he was the primary target.  The adjudicator did not believe the applicant was a genuine claimant.

11.  As a result of his findings and his conclusion that the applicant was not a genuine claimant, the adjudicator concluded that he had not made out a case for non-refoulement protection under any ground.  He did also take the view that even on the applicant’s own facts, he had not suffered severe pain or suffering that could be defined as torture.  The adjudicator found the applicant was unsuccessful in showing he was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk.

12.  The adjudicator did consider relocation when it was not necessary to and concluded that if there was any risk, it was in his own home area.  He could relocate internally elsewhere without undue hardship such as Dhaka where he had lived for months without harassment or trouble before he left Bangladesh.  The adjudicator confirmed the decisions 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 analysed the material, claim and evidence.  The applicant’s complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application.

14.  There are eight grounds in this affirmation and all contain no particulars.  Grounds 5, 6, 7 and 8 contain no particulars.  As an example, 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.  Ground 5 complains of the adjudicator taking into account irrelevant considerations and failing to put weight on facts that were favourable to the applicant but there are no particulars.  Ground 7 submits the adjudicator applied the incorrect standard of proof but does not expand on that statement.  These grounds have no merits.

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 when he did not need to considering his finding the applicant was not a genuine claimant.  These grounds are not arguable.

16.  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 or unhappy to proceed with the appeal.  At the oral hearing, by way of explanation, the applicant explained that he did not know he could complain to the adjudicator.

17.  There is a complaint the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is misleading because the Director rejected it on 2 June 2017 which was before the oral appeal hearing date of 22 June 2017.

18.  There is a complaint the applicant answered all the questions honestly and is aggravated that his credibility was found questionable.  That was a finding of the adjudicator’s that he gave reasons for in his decision.  I do not intend to interfere with his findings.

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