AHAMMED MD ROBIN v. FRASER SYME, ESQ.

HCAL379/2017

[2018] HKCFI 101

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 379 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 claimed to have entered Hong Kong illegally on 15 July 2014 only to be arrested on the same day.  He lodged a non-refoulement claim on 19 July 2014 which was rejected by the Director of Immigration (“the Director”) on 26 July 2016 and 11 May 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 22 June 2017. He then filed a notice of application for leave to apply for judicial review on 10 July 2017 and request an oral hearing was set down on 27 October 2017.  The applicant appeared in person because his application for legal aid was refused.

2.  The basis of the applicant’s claim was that if he was refouled to Bangladesh he would be harmed or even killed by members of the Awami League (“AL”) because of his refusal to join that political party.  The Director and the adjudicator of the TCAB set out in full the applicant’s claim and evidence in their decisions therefore, I only intend to summarise it here.

3.  The applicant became a member of the Bangladesh Nationalist Party (“BNP”) in 2001 and in 2013 he was appointed a secretary of the Jubo Dal (“JD”) the youth wing of the party.  In January 2014, he and a friend were beaten by seven men with sticks and iron rods in the street and told they had to join the AL and if they did not they would be killed.  They were taken to hospital and the applicant was hospitalised for a week.  He recognised one of his attackers as an employee of a local union chairperson and an AL leader.  He made a police report but when he mentioned the chairperson’s name the police refused to register the complaint.

4.  He then began to receive frequent threatening phone calls from someone from the AL despite changing his phone number five times.  In February 2014 he travelled with a group of 20 BNP supporters to a meeting but his group were attacked by 50 AL supporters brandishing hockey sticks.  Police officers were present but they protected the AL supporters.  Many BNP supporters were hospitalised after the attack but luckily the applicant was uninjured.

5.  AL members even visited his home and harassed his father; telling him that if the applicant did not join their party they would kill him.  His father made police complaints but he was ignored.  In February 2014 the applicant moved away from his home and again in April even further.  In March 2014 he went to India to apply for asylum but returned a few days later when his father told him that an AL member said they would leave him alone.  However, this proved to be untrue and he received death threats over the phone.  He then asked an agent to arrange passage for him to leave Bangladesh.  He flew to Mainland China and then entered Hong Kong by boat.  His family continue to be harassed and his brother who worked for the BNP went missing in November 2016.  The applicant does not believe he can relocate internally as the AL is the ruling party and powerful, meaning they can locate him anywhere.

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 of the TCAB treated the appeal/petition as a rehearing.  He correctly set out the law and key legal principles for all the applicable grounds.  He analysed and compared the applicant’s evidence, particularly in his non-refoulement claim and his appeal hearing.

8.  The adjudicator clearly had concerns which led him to doubt the applicant’s credibility.  He found inconsistency in his evidence which undermined his claim.  He had his doubts whether the applicant was indeed a member of BNP or its youth wing.  He did not believe the applicant did any work for that political party.  He rejected the applicant’s evidence that he was ever threatened or harassed in person or over the telephone or even attacked by supporters of the AL.  He rejected the applicant’s evidence in its entirety.  He did not consider the applicant a genuine claimant.  He set out in full in his decision the serious material discrepancies in the applicant’s evidence which led to this conclusion.

9.  The adjudicator considered the applicant’s evidence as to how he obtained his documentary evidence and rejected it; he placed no weight on the applicant’s political party membership certificate or his medical records.  He examined the appearances of the copies applied by the applicant and considered the country of origin information regarding the prevalence of fraudulent documents from Bangladesh.

10.  Ultimately the only fact the applicant could establish was his nationality.  As a result of this finding, the adjudicator went on to conclude 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 BOR, a real risk of being deprived of his right to life under Article 2 of BOR 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

11.  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.

12.  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.  The applicant said in open court that it did not occur to him at the time to complain to the adjudicator about the poor performance of his duty lawyer.  I highly doubt this is the truth.  These grounds have no merits.

13.  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.  The adjudicator actually made no 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.

14.  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.

15.  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.  However, the applicant submitted that he did tell the adjudicator he was not fully prepared but the adjudicator ignored this and only asked him if he needed an interpreter and then the hearing began.  There is no record of this conversation because I highly doubt it took place.  I am sure if it did the adjudicator would have dealt with accordingly.

16.  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 11 May 2017 before the oral hearing conducted by the adjudicator on 8 June 2017.

17.  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.

18.  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