MONA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL362/2017

[2018] HKCFI 808

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 362 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 male who claimed to have entered Hong Kong illegally on 7 November 2013 only to be arrested by the police immediately.  He then lodged a torture claim which after March 2014 became a non-refoulement protection claim.  That claim was rejected by the Director of Immigration (“the Director”) on 18 December 2015 and 30 December 2016.  The applicant then 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 6 July 2017.  He requested an oral hearing which was set down in October and then adjourned for a legal aid application; he was then heard on 18 December 2017 in person.

2.  The basis of the applicant’s claim was that if he were refouled to Bangladesh he would be harmed or killed by members of the Awami League (“AL”) in his village because he refused to join their party and quit his party, the Bangladeshi Nationalist Party (“BNP”).  Both the Director and the adjudicator of the TCAB set out the applicant’s claim in detail in their decisions therefore, I only need summarise it here.

3.  The applicant was born in 1983, only had a few years of education and is single.  His uncle was the general secretary of the BNP in his area and his role model so he too joined as a member in 2011.  There were four incidents that involve members of the AL that led the applicant to leave Bangladesh and fly to China, remain there for over a year before sneaking into Hong Kong.  The first three incidents involved clashes between members of the two parties where the applicant was not the target so to speak.

4.  In the first incident the applicant’s group of BNP members were told not to distribute leaflets and a fight broke out; the applicant was punched in the face once.  In the second incident, a BNP meeting was interrupted by AL members carrying sticks and the applicant was hit on the back twice.  In the third incident, a BNP procession of 500+ was attacked by some 2,000 AL members and the applicant woke up in hospital; he received five stitches to his foot and three stitches to his knee as well as had bruising on his body.  In the fourth incident, some AL members visited the applicant at home and tried to persuaded him to quit the BNP and join the AL.  When he refused they threatened to kill him and then left.  This was the first time he was invited to join their party.

5.  After this threat, the applicant left Bangladesh on 17 October 2012 and flew to China where a Bangladeshi male told him a few days later that he should go to Hong Kong to seek protection and offered to send him there for HK$50,000.  The applicant paid the sum and that man put him on a boat to Hong Kong 13 months later.

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 Director considered the applicant’s claim, evidence, Country of Origin (“COI”) material and found the level of risk of harm from members of the AL if he were to be refouled to Bangladesh was low. According to his own evidence, there was no incident where he suffered any serious physical harm or injury that amounted to the minimum level of severity required to be defined as torture.  There was no incident where there was any physical confrontation involving the applicant himself and any AL members where it would seem he was or is or became a target.  He made no attempt to seek help from the police or any other authority.

8.  The Director gave full reasons behind his findings.  He found there to be reasonable state protection available which further lowered or negated the level of risk.  The same applied to available and reasonable internal relocation alternatives.  He set out and referenced the COI material he relied upon.

9.  As a result of his careful assessment, the Director when he applied his findings to the law and key legal principles, 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.

10.  The adjudicator of the TCAB treated the appeal/petition as a rehearing.  The applicant had his rights explained to him with the assistance of an interpreter and he elected not to answer any questions, the applicant had nothing further to add concerning the BOR 2 risk either when asked.  The adjudicator set out the law and key legal principles applicable to the four grounds.  He set out the applicant’s claim as well as the Country of Origin (“COI”) information he referred to and relied on; setting it out in his decision.  He found that state protection was available to the applicant if he was at any risk upon his return to Bangladesh.

11.  The adjudicator found when he applied the applicant’s evidence to all four grounds, the applicant had not made out a case for non-refoulement protection.  On the applicant’s own facts, he was not able to establish within the definition of torture under section 37U(1) of the Immigration Ordinance that severe pain or suffering had been inflicted on him by members of the AL and that there was a real risk of torture by the same members if he returned to Bangladesh. The adjudicator found that the applicant’s claim, on his own facts, had failed to invoke the protection of BOR 2 or BOR 3.  Lastly, the adjudicator found his fear of ill-treatment did not fall within the definition of persecution and his persecution risk claim failed.  Despite this finding, he nevertheless went on to consider internal relocation; he found internal relocation a viable option for the applicant.  The adjudicator 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.  I find the Director’s and the adjudicator’s decisions to be without fault.  They analysed the material, claims and evidence carefully.  The applicant’s grounds and complaints are not made out.  I find no substance in the grounds of this application; they are not substantiated.

13.  It is a ground both the decision-makers failed to conduct a critical analysis of the COI material, analyse it objectively, they are accused of cherry picking COI information and failing to consider his claim in a holistic manner.  However, in this ground there are no particulars provided.  A reading of both decisions show these criticisms are justified in particular without any particulars to support them.

14.  It is a ground of the application the Director/adjudicator failed to appreciate the presence of State acquiescence in the applicant’s case.  Having considered the papers, it was not the applicant’s case and there was no need for either the adjudicator or the Director to consider if there was any active or passive acquiescence of any public officer or the State.  The applicant made no police report and the evidence he gives of police bias is speculation and hearsay.  There is no substance to this ground.

15.  The last ground is a failure to consider the applicant’s physical injuries and psychological harm.  However, it is clear from both decisions that both decision-makers did consider these factors and there is no merit in this ground.

16.  I do not find any ground that shows there was an error of law by the adjudicator or the Director.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

17.  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