SHEIKH FIRUJ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL686/2017

[2018] HKCFI 1538

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 686 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 the Applicant being absent 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 a few days before he surrendered to the Immigration Department on 30 November 2015.  He lodged a non-refoulement protection claim in February 2016 and submitted his claim form in June 2016.  The Director of Immigration (“the Director”) rejected his claim on 18 August 2016 and 9 June 2017. The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 15 September 2017.  He then filed a notice of application for leave to apply for judicial review on 27 September 2017 and requested an oral hearing which was set down on 27 February 2018.  The applicant had applied for legal aid but it was refused in the December prior to the hearing.

2.  The applicant was absent on the morning of the hearing and there was no answer to calls made to the mobile phone telephone number provided by the applicant.  A notice of hearing had been posted on 14 December 2017 to the applicant’s address provided in his application therefore I proceed to consider his application on the papers.  The basis of his claim was that if he were to return to Bangladesh he would be harmed or even killed by Mithu, a secretary of the Awami League party (“AL”) because the applicant was a member of the Bangladesh Nationalist Party (“BNP”) and had refused to join the AL as demanded by Mithu.  Both the Director and the adjudicator of the TCAB had set out the applicant’s evidence and case in detail in their decisions therefore, I only intend summarise it here.

3.  The applicant became actively involved in the BNP in around 2008 and helped the local chairman arrange meetings and rallies; he was given the position of campaign secretary.  Before he became actively involved in the BNP, Mithu had asked the applicant to join his party but he had refused which made him angry.  In about 2010, when he and a group of BNP supporters were on their way to a party meeting, they were intercepted by a group of AL members led by Mithu and attacked.  The applicant was personally punched by Mithu.  After this incident, the applicant moved to live with his aunt some two hours away for about five years.  During that time, he heard that the AL members told others in his home village that they would harm him if he returned.

4.  In May 2015 the applicant returned home for a wedding and was told by members of the family that AL members had been to the family residence and threatened him.  The applicant did not see them but assumed it was the same group from many years ago so he tried to lodge a complaint at the police station but they refused to register it.  He returned to live with his aunt and not long after decided to leave Bangladesh for his own safety.  After he arrived in Hong Kong, he heard from his family that Mithu and his men continue to look for him and threatened him with death.

5.  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”).

6.  The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles applicable to all four grounds.  He set out the applicant’s evidence and his analysis of it.  The adjudicator set out the approach and legal authority to be followed when assessing the credibility of a claimant of this nature; in the overall context of considering whether he faces a real risk of persecution, torture or CIDTP.

7.  The adjudicator found the applicant’s initial statement to the Immigration Department limited and contained very few details.  The screening interview which followed did not effectively test any of the assertions in that initial statement which meant there was insufficient information before the adjudicator to allow him to appropriately establish the facts of this claim.  He found it necessary to further question the applicant.  This is entirely appropriate since he should treat an appeal hearing as a rehearing.

8.  Nothing the applicant told the adjudicator or the Director for that matter could be given any credence whatsoever.  The adjudicator concluded after hearing from the applicant that he was not a witness of truth nor was he a genuine claimant.  His oral evidence to the adjudicator was “evasive, incoherent, lacking in appropriate detail and fundamentally inconsistent with what he had previously told the (Director).  When those discrepancies and difficulties were put to him, the appellant had no reasonable explanation for them.”  The adjudicator went on to set out in his decision in meticulous detail the material inconsistencies and discrepancies that showed the applicant had no credibility.

9.  There were discrepancies in the timelines during which the alleged difficulties he had took place.  What he described to the adjudicator meant that alleged difficulties should have taken place between 2003 and about 2006, and not between 2010 and 2015.  Even when told he was not expected to give specific dates he could not provide an explanation for such a difference.  The adjudicator found it incredulous that the applicant claimed to be a campaign secretary of the BNP when he could not give any description or detail of the BNP, be it about its history, aims, policies or structure of the party.  He gave evidence in the appeal hearing that directly contradicted evidence he gave in his statement to the Director which he could not explain.

10.  His evidence of confrontations with Mithu differ materially between his oral evidence and his statement; once again he could provide no explanation for that.  The incident he describes of the AL members visiting his home when he finally returns after five years that led him to decide to leave Bangladesh also differ materially between his oral evidence and his statement; as in, he was present in one version and not present in another version.  Again he could not provide an explanation for that significant discrepancy in his evidence.

11.  The adjudicator uses strong language in describing the applicant’s credibility; he calls his account superficial and entirely unconvincing.  He 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 purpose of a non-refoulement protection claim.

Leave to apply for judicial review

12.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  The adjudicator meticulously analysed the material, claim and evidence and then explained his findings.  The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

13.  The supporting affirmation does not clearly and coherently set out the applicant’s grounds but it would appear that he proposes the following as grounds for seeking leave:

(1)     his lack of legal representation before TCAB;

(2)     the lack of language assistance given to him;

(3)     the Director failed to give him an opportunity to claim BOR 2 risk; and

(4)     the TCAB failed to properly consider Country of Origin information and ignored his evidence of pain and suffering.

14.  The first ground is a complaint by the applicant he was not provided with legal representation for his appeal/petition.  The court was reminded that a “high standard of fairness” should be maintained but legal representation for this applicant only extended to the claim process before the Director.  Once the Director dismissed his claim the applicant received no further free legal advice or assistance.  The applicant submits this is a “violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice”.

15.  It is clear that where the applicant’s fundamental human right not to be subjected to torture is involved, it has been held “high standards of fairness” must be observed by the decision-maker when making the relevant administrative decision, see Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 44.  That frequently referred to standard applies to the assessment undertaken by a decision-maker of a torture claim.  That approach for the adjudicator is paramount and cannot be stressed enough.  However, the applicant here has taken it out of context by implying it should mean and include the automatic provision of legal representation to him beyond what was provided by the duty lawyer scheme to him.  I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice.  The fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair. The duty lawyer scheme will continue to represent applicants in their appeals if they are of the view there is merit in their cases.  Their assessment is on a case-by-case basis.

16.  In the applicant’s second ground he submits that he should be entitled to the service of an interpreter provided by the Hong Kong government throughout the process of his claim to avoid jeopardising his rights.  There are no particulars in his affirmation to demonstrate where during the process of this appeal/petition he has been prejudiced because of a lack of an interpreter.  This ground is not directed at the appeal/petition process.  I see no merit in this ground.

17.  The applicant’s third ground is a complaint against the Director, he submits he never received any correspondence from the Director inviting him to submit information if he wished to support a BOR 2 risk claim.  However, there is no complaint of this nature recorded in the adjudicator’s decision from the applicant. I find no merit in this ground.

18.  The applicant’s last ground is a complaint against the adjudicator for failing to properly consider COI information as well as his serious injuries and ill-treatment.  The adjudicator in a most articulate, definitive and thorough examination of the applicant’s credibility found him utterly implausible and therefore it was an unnecessary exercise to examine COI information.

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.  The same applies to the decision of the Director.

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