EUNUCH MOHAMMAD v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL568/2017

[2018] HKCFI 1515

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 568 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 19 June 2014 only to be arrested on the same day.  He made a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 25 April 2016 and 23 December 2016.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 18 August 2017.  He then filed a notice of application for leave to apply for judicial review on 31 August 2017 and requested an oral hearing; he appeared in person on 27 February 2018 having had his application for legal aid refused.

2.  The basis of his claim is that if he were to return to Bangladesh he would be harmed or killed by a group of Awami League (“AL”) members because of a series of disputes between him and them in his capacity as the president of the Bangladesh Nationalist Party (“BNP”) in his local area.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, I only intend summarise it here.

3.  The applicant was born in 1991, graduated from university in 2014, is married with a child and worked for a pharmaceutical company in Dhaka.  As a student he joined the student wing of the BNP.  He was president of the student wing for a year.  His troubles began in March 2012 when the AL stopped him and beat him up for being actively involved in the BNP party politics.  He was badly injured and needed hospitalisation.

4.  After he recovered, he went back to college and the following year in August he and other BNP members were set upon on their way to a BNP meeting by about 35 AL members and he sustained a leg injury.  He managed to get away but that lasting injury required surgery two years later in Hong Kong.  There was a hospital document submitted that showed the applicant was treated for an abscess in his leg in Hong Kong.  In that same month, his father told him that the AL had filed false cases against him and other BNP members at the police station and again in November 2013.

5.  In November 2013 the applicant was about to be attacked by members of AL whilst he was at college but he ran away as they approached him.  He did his exams in December and then went to Dhaka to avoid the AL and the police in January 2014.  He then made plans to leave Bangladesh because he was in fear for his safety and left in June 2014.  His mother had recently told him there were three or four more cases filed against him by the AL.  The applicant had submitted several documents to support his case.

6.  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”).

7.  The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  She correctly set out the law and key legal principles applicable to all four grounds.  She set out the applicant’s evidence and claim as well as her analysis of it.  She considered the applicant’s credibility.

8.  The adjudicator set out in detail the material inconsistencies and discrepancies in his evidence she found when comparing the applicant’s written non-refoulement claim form, the transcript of his screening interview and his oral evidence in the appeal hearing.  The applicant was unable to tell the adjudicator anything about the policies of the BNP.  He did not know much about the party’s role, ideals nor what the party stood for.  He had confused the name of the student wing of the BNP and the student wing of the Jamaat-e-Islami despite being president of both unions at different times.

9.  The adjudicator accepted that there was a history of animosity, intimidation and violence between members of the two opposing political parties in Bangladesh but that is not in itself sufficient to find the applicant personally faces a real risk of harm if refouled.  He claimed to have held senior leadership positions in the student wing of political parties but could not give any information about the political ideology or policies or distinguishing features of the parties.  If he held a senior position he would have a good understanding of particularly, the BNP.  He even gave inconsistent evidence as to how often he held his leadership position in his village; once a week or once a month.  He produced a document to prove he was the president of the student wing but the spelling of his name was different to that of his passport and in light of the high level of document fraud in Bangladesh, the adjudicator placed no weight on that document.  The adjudicator did not believe he was a leader in the party of any sort.

10.  The adjudicator does not completely dismiss the applicant’s evidence that he was attacked by members of the AL.  What she does not believe is that given his low level of involvement in the BNP, he was singled out for attention or targeted as an individual.  She also does not believe he was seriously harmed or ill-treated or tortured.  She concluded that he had exaggerated his claims for international protection.  He had produced two documents purported to be complaints filed against him with the police.  There are no court documents or arrest warrants.  Again, the applicant’s name is spelt incorrectly in the documents and his ages different in both.  Given the prevalence of document forgery and fraud in Bangladesh, the adjudicator once again does not accept that the documents are genuine nor place any weight on them.  She finds it implausible that as a low-level supporter of the BNP, members of the AL would concoct false criminal cases against him in order to curtail his party activities.

11.  Despite her findings, even if he was of interest to the AL, it was confined to his village and the applicant would be able to safely relocate elsewhere in Bangladesh.  As a low level supporter of the BNP and the lack of any previous ill-treatment or harm, the adjudicator found that any risk that the AL members from his village would pursue him to a city such as Dhaka, Chittagong or Khulna to be extremely low.  He is highly educated and therefore internal relocation was a viable option without undue hardship.  The adjudicator applied her findings to the law and key legal principles and 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 for the purposes of a non-refoulement protection claim.  She confirmed the decision of the Director.

Leave to apply for judicial review

12.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions.  I find the adjudicator’s decision to be without fault.  The applicant’s complaints against her and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

13.  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.  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.

14.  In grounds 1, 2, and 4 it is submitted the adjudicator failed to consider relevant and up-to-date Country of Origin (“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 did not consider COI because of her finding the applicant was not a genuine claimant.  These grounds are not arguable.

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.  There was an interpreter present to assist if the applicant had asked for assistance.  There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal.  Moreover, this application and its supporting affirmation were made in English which pours further doubt on this complaint.  There is no merit in this ground.

16.  The applicant also criticises the adjudicator for doubting his credibility when he answered all of his questions honestly. Recently the Court of Appeal in Re Lakhwinder Singh 2018 HKCA 246 at (13) said that;

“Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers. Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh even in absence of any legal error.”

This adjudicator gave full and meticulous reasons for that finding, the TCAB had a rational basis to find against the credibility of the applicant.  There are no proper grounds for interfering with such a finding.  There is no merit in this ground.

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 23 December 2016 and the date of the appeal hearing was 24 January 2017 with specific reference to that decision of the Director.

18.  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.

19.  In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, paras 14-17. 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