ABDUL MANNAN v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 243/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 243 OF 2016

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J U D G M E N T

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Introduction

1.  The applicant is a Bangladeshi national.  He departed Bangladesh on 10 October 2005 and arrived in Hong Kong as a visitor.  He overstayed illegally since 26 October 2005.  He remained undetected for over 2 years until he was arrested by the police on 30 June 2008.  Four days after his arrest he lodged his non-refoulement claim on all applicable grounds, ie:

(1)   Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk claim”);

(2)   Risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR 3 risk claim”); and

(3)   Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“persecution risk claim”).

2.  The Director rejected the applicant’s non-refoulement claim.  The Torture Claims Appeal Board (“TCAB”) dismissed his appeal.  The applicant seeks leave to apply for judicial review of both decisions.

Facts

3.  The applicant claimed to have witnessed, in mid-2004, the murder of his neighbour shopkeeper who refused to pay extortion money to Kochi’s gangsters. The gangsters threatened the applicant with death using a revolver and forbade him from testifying.  The applicant was not hurt and he did not report the threat to the police.

4.  Kochi was allegedly a supporter of the Bangladesh Nationalist Party (“BNP”).  The applicant has never met him and did not know anything else about him.

5.  Feeling afraid, the applicant waited a week and then went to stay with his brother-in-law in Adomji in District Narayangonj for about a month.  He then moved to Savar in Dhaka where he spent about 2 months. In the meantime, he had told the Mirpur Police Station that he would not give any witness statement.

6.  On 8 September 2005, he went to India and Nepal in order to obtain stamps in his passport to facilitate entry into Hong Kong. He departed Dhaka Airport on 10 October 2005 and arrived in Hong Kong on the following day.

7.  The Adjudicator found that the allegation of Kochi being affiliated with the BNP did not advance the applicant’s case as there was no evidence of involvement with BNP.  The alleged criminal extortion, murder and an attempt to pervert the course of justice showed no evidence of instigation, authorization or acquiescence (or extended acquiescence), by the national government of Bangladesh.

8.  The Adjudicator found that neither the applicant nor his family members or close friends have ever been arrested, detained or imprisoned in Bangladesh.  The applicant departed Bangladesh via an international airport and proper immigration channels without problem.  These features showed that he was not targeted for torture by the Bangladesh national government.

9.  The Adjudicator found that the applicant had not been assaulted, let alone suffered injury which constituted “severe pain and physical or mental suffering reaching the minimum level of severity”. 

10.  Seeing that he was not giving any witness statement nor testifying for the prosecution, there could be no risk of assault by the gangsters.  Even if the gangsters would assault him, such assaults would not constitute torture because they would not be acting for and on behalf of the Bangladesh national government.  The evidence also did not establish any substantial ground showing a foreseeable and real risk.  Further, it would be safe for the applicant to return to Bangladesh, at least to places other than his home locality, where he could safely reside without undue hardship.

11.  The Adjudicator analysed a list of country of origin information (“COI”).  He did not accept that a small handful of gangsters of over 11 years ago would still be interested in locating the applicant all over Bangladesh, especially since he was not testifying against them and had fled from home.

12.  The torture risk claim failed.

13.  The applicant has not suffered any injury which would place him within the criteria of CIDTP.  There was no substantial ground to believe that he would face a future risk of serious harm.  The COI also showed reasonable availability of state protection.  The BOR3 risk claim similarly failed.

14.  The alleged future risk of assault would not be under the Refugee Convention category of race, religion, nationality, membership of a particular group or political opinion. The handful of alleged potential assailants did not come within the meaning of populace in refugee law.  The persecution risk claim failed.

15.  Independent from these grounds, the Adjudicator had found against the applicant on credibility based on his failure to raise a torture claim until he was arrested 2 years and 8 months since his arrival in Hong Kong; he had stayed underground.  Furthermore, despite his alleged fear, he stayed home for a whole week before moving to 2 other places for 3 months.  He did not explain his conduct.

Intended judicial review against the Director’s decision

16.  Judicial review will not be granted if an applicant has not exhausted all available alternative remedies: Kwok Ping Sheung Walter v The Law Society of Hong Kong, HCAL 73/2012, 27 September 2013, §§26-27.

17.  The Applicant could and did appeal to the TCAB.  It is therefore not open to him to judicially review the Director’s decision.

Intended judicial review against TCAB’s decision

18.  The burden is on the applicant to show that the grounds advanced are arguable: Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, §§14-17.

19.  The Court plays a supervisory role in a judicial review, and the crucial issues are: whether there was any error of law; whether the procedures adopted at the hearing of the petition satisfied the high standard of fairness; and whether the substantive decision satisfied the enhanced Wednesbury test.  See TK v Jenkins & anor, HCAL 126/2010, 21 October 2011 (per Lam J (as he then was), upheld on appeal), §87; TK v Jenkins & anor [2013] 1 HKC 526(Court of Appeal), §40; Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, §45.

20.  The standard of review is that of “rigorous examination and anxious scrutiny to ensure that the required high standards of high fairness have been met”: Secretary for Security v Prabakar, §45.

21.  The enhanced Wednesbury test is an application of the Wednesbury test by means of a rigorous examination and anxious scrutiny of the decision-making process and the reasons by which the decision-maker reached his decision.  See AM v Director of Immigration & anor [2014] 1 HKC 416, §34.

22.  The intended grounds for judicial review were home-made by the applicant’s friend.  The applicant himself did not understand those grounds and could not make submission to the court. He just kept repeating that he wanted to stay in Hong Kong.  Broadly, there are 5 written grounds:

(a)   Procedural impropriety in failing to properly consider the requirements that states must effect reforms and avenues of redress which were effective in discharge of the government’s duty of due diligence;

(b)   Failure to take into account the concept of state acquiescence expounded in TK v Jenkins;

(c)   Failure to conduct sufficient independent inquiries into relevant COI;

(d)   Failure to inquire the COI conditions and the relevant COI in assessing the claims.

(e)   Taking into account irrelevant considerations including but not limited to the fact that the applicant was able to leave Bangladesh without incident.

23.  With regard to grounds (a) and (b), fundamentally, the applicant suffered no injury to reach the minimum standard required by law.  There was no evidence of government involvement or acquiescence.  It was simply not necessary to consider the requirements for state reforms and avenues of redress.  

24.  With regard to ground (c), the applicant did not give evidence and so the Adjudicator did not have the benefit of the applicant’s comments on the COI.  Looking at the broad range of COI materials which the Adjudicator had considered, there could not be any complaint for lack of independent inquiries.

25.  With regard to ground (d), the Adjudicator took into account various items of COI.  He also took into account the fact that the applicant stayed at home for a week notwithstanding his fear after the murder and went to live in 2 other places with nothing untoward happening for 3 months before he came to Hong Kong.  These were all relevant matters for the Adjudicator to assess whether the applicant could be safely located in Bangladesh away from home.  No error of law was committed.

26.  With regard to ground (e), the Adjudicator has clearly explained that the ability to leave Bangladesh without incident showed that the applicant was not a target of torture.  That was a finding open to the Adjudicator on the evidence.  No error of law was committed.

27.  The Adjudicator conducted an oral hearing.  He explained the rights to the applicant and gave him time to consider.  However, the applicant had remained silent.  I see no procedural error in the process.

28.  In respect of each of the 3 claims, the Adjudicator has adequately set out the law and analysed the evidence.  There was no error of law or procedural impropriety in the decision-making process.

Conclusion

29.  The applicant has failed to show arguable grounds to meet the test in Peter Po Fun Chan. Accordingly, I decline to grant leave to apply for judicial review.