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

HCAL 312/2017

[2018] HKCFI 401

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 312 OF 2017

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J U D G M E N T

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1.  This is an application for leave to apply for judicial review. The applicant is a Bangladeshi national who lodged a torture claim in April 2006 which was dismissed by the Director of Immigration (“the Director”) in September 2012. The applicant did not appeal the decision. In May 2015 the applicant lodged a non-refoulement claim that was assessed on applicable grounds other than the risk of torture. That was dismissed by the Director on 22 January 2016 and 10 February 2017, the latter decision relating to the BOR 2 risk only.

2.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which dismissed his appeal on 15 June 2017.  The applicant filed a notice of application for leave to apply for judicial review on 21 June 2017 and was legally represented during the application.

Background

3.  The applicant first entered Hong Kong on 18 December 2004 using a false passport under a different name and overstayed illegally for six months.  He was arrested when caught working illegally and sentenced to a term of imprisonment.  He was deported on 19 October 2005.  He entered Hong Kong again not long after on 17 December 2005 using his present identity and once more overstayed until he was arrested by the police on 5 April 2006.  After this arrest, he lodged a torture claim.  Whilst on recognizance he was arrested twice, in 2006 and in 2008 for working illegally in Hong Kong.

4.  The basis of the applicant’s fear was that if he was to return to Bangladesh he would be tortured or even killed by Liton, a member of the Bangladesh Nationalist Party (“BNP”) who he injured during a political rally.  The applicant was a member of the Awami League (“AL”).  He had also fled in fear of being arrested and tortured by the Bangladeshi police because there was a warrant for his arrest for the murder of Shafiq, the father of his friend Ujjal.  He had been framed for that murder.

5.  The applicant had been a member of the AL since 1997 and the Vice President of the ward committee in his area in about 2001.  He arranged meetings and rallies on a monthly basis.  At the end of June 2004 his AL office was attacked by a gang of BNP members armed with hockey sticks and iron rods who destroyed the office.  The applicant and another four to five AL members who were present fled immediately without sustaining any injuries.  This incident was not reported to the police.  The following day his party organised a rally to protest against this office attack and about 3000 to 4000 AL members attended the rally.  During this rally BNP members arrived and attacked the AL participants by throwing stones, shooting guns and bombing the rally.  The applicant and his fellow members threw stones at BNP members and a stone thrown by the applicant hit a senior BNP leader, Liton.  The applicant escaped but was hit by a stone without suffering serious injury.  The applicant went to his friend Ujjal’s house for a few days before returning home.  His parents told him that some senior members of BNP had come to his house to look for him on the night of the rally.  The applicant was scared that they would inflict serious harm or even kill him if they found him so he went back to Ujjal’s place to hide for about three weeks.

6.  Ujjal was his childhood friend and business partner since 2004.  He was a supporter of AL as well.  He lived with his parents.  One day when the applicant was hiding at his home he heard his friend arguing with his father and suddenly saw his friend hit his father with a stick over the head.  The applicant was the only witness to this incident.  His father fell to the ground and lost consciousness.  Ujjal’s father died on the way to the hospital.  That same evening, the applicant had an argument with Ujjal about a loan Ujjal still owed him which remained unpaid.  Suddenly, his friend accused him of killing his father.

7.  The applicant then decided to return to his own home because of the false accusation of murder.  The applicant remained at home for two days only because he feared arrest as a result of the false accusation of murder; he went to Dhaka to hide.  The applicant did not report what he saw Ujjal do to his own father because he thought the police would not believe him.

8.  After he arrived in Dhaka, the applicant’s father told him that Ujjal’s family had filed a murder case against him but he still did not go to the police to tell the truth because he had no concrete evidence to support himself and because Ujjal’s brother was a Mayor he was sure the police would not believe him.

9.  The applicant stayed with a cousin in Dhaka from July 2004 to December 2004.  He arranged an agent to obtain a forged passport so he could travel out of Bangladesh to go to Hong Kong.  Later on, the applicant then decided he would not seek protection in Hong Kong after serving a term of imprisonment because he believed his prospects of success were not high; he chose to be sent back to Bangladesh.  However, almost as soon as he returned to Dhaka he changed his mind; he made plans to leave Bangladesh again. He applied for a passport in his own name and left less than two months later for Hong Kong.

10.  The applicant had two documents to support his claim, a copy of the First Information Report (“FIR”) issued by the police station to Ujjal’s mother dated 22 July 2004 and a copy of the police arrest warrant dated 16 February 2005; both obtained by the applicant’s father in 2012.  He did not think to try and obtain these documents until after the Director dismissed his torture claim.

11.  The adjudicator of the TCAB analysed the applicant’s claim under all applicable grounds after the applicant filed an appeal/petition:

(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 (“HKBOR”) 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”).

12.  The adjudicator did not have to consider a torture risk as it had been dealt with previously and separately on its own long ago.  However, for the sake of completeness he did apply all four applicable grounds to the applicant’s claim and evidence.  He treated the appeal/petition as a rehearing.

13.  The adjudicator applied the definition of torture as set out under section 37U(1) of Cap. 115 to the applicant’s case and evidence and found the applicant unable to establish he was at risk of torture if refouled.  He had never suffered any severe pain or suffering, whether physically or mentally, intentionally inflicted on him by any person, let alone someone acting in an official capacity or with the consent or acquiescence of a public official.

14.  The adjudicator considered the requirements to be proved to invoke protection under Article 3.  This required injuries that attained a minimum level of severity which on the applicant’s own facts he had not suffered.  Then, the applicant failed to establish he had a genuine and substantial risk of facing any ill-treatment that would amount to torture or CIDTP if refouled.  The adjudicator found his BOR 3 risk claim failed.  Applying those same facts, there was no substantial risk to the applicant’s life which meant he had failed to establish a personal and real risk of his absolute and non-derogable rights, including his right to life under BOR 2 being violated; his BOR 2 risk claim failed.

15.  The adjudicator considered whether he was at risk of persecution if refouled to Bangladesh.  He found his fear did not arise from being persecuted on account of race, religion, nationality, membership of a particular social group or political opinion.  There was insufficient evidence to find he had a well-founded fear of any future risk because of those events in 2004 where he was not personally targeted for his political opinion.  For this and other reasons, the adjudicator found the applicant fell short of establishing any persecution risk; his persecution risk claim failed.  The adjudicator confirmed the decision of the Director.

16.  The adjudicator did refer to and consider Country of Origin Information (“COI”) as well as noting Part “A” of the Director’s decision, which I take to mean adopting the reasons for the Director’s explanation why the applicant was safe to return home (see paragraph 19 of the adjudicator’s decision).  The adjudicator set out the summary of the COI he considered which led to a conclusion there was available State protection to the applicant and victims of crime.

17.  The adjudicator also referred to COI that led to a finding there was a viable option of internal relocation if he was at any risk of harm if refouled.  If he was at risk in his home district, he could relocate internally without undue hardship to many other large urban cities in Bangladesh according to such information considered which included population, commerce, climate, natural resources and size.

18.  The adjudicator had considered the applicant’s claim on the basis that his evidence was true; he did not consider his credibility.  He then did that separately and independently.  He makes several observations that concern credibility such as the fact the applicant did not lodge any claim for protection immediately after arriving in Hong Kong; not the first time in 2004 nor the second time in 2005.  Instead, on both occasions he overstayed his Visa which indicates dishonesty and took up unlawful employment which indicates dishonesty and committed further offences of dishonesty.

19.  The applicant did not lodge a claim until he came to Hong Kong on the second occasion and then only after his arrest for overstaying.  The applicant also applied to the United Nations High Commissioner for Refugees (“UNHCR”) for Refugee status in January 2016 but did not follow through with this application; the adjudicator suggests this means his application was not serious or genuine.  Moreover, the applicant withheld his consent for the information which he had provided to the UNHCR to be disclosed to the Director for consideration.  These matters in this and the preceding paragraph can legitimately be considered to affect the credibility of an applicant according to section 37ZD of the Immigration Ordinance.  However, the adjudicator did not specifically make a finding as to the applicant’s credibility citing the reason that the applicant elected not to give evidence during the appeal hearing and remained silent.

Leave to apply for judicial review

20.  Counsel for the applicant, Mr Tibbo had originally sought to judicial review three respondents; the adjudicator of the TCAB, the Director of Immigration and the Duty Lawyer Service.  After the hearing, the applicant was given leave to file a re-re-amended notice of application for leave and removed the Duty Lawyer Service as a respondent.  In the re-re-amended notice of application the applicant seeks to judicial review the adjudicator of the TCAB and the Director of Immigration.

The 2^nd respondent- Director of Immigration

21.  The applicant sets out three grounds for leave to apply for judicial review to challenge the Director.  However, I take the view that it is not the right course of action to take; to seek leave to judicial review both the Director’s decision as well as the adjudicator’s decision.  The applicant has already utilised the channel of appealing the Director’s decision to the TCAB.  The TCAB treated the appeal/petition as a de novo hearing or a rehearing.  There is no room thereafter to judicial review the Director’s decision unless in exceptional circumstances; it will be the TCAB decision that is subject to a leave application.  I will go on to consider the grounds of this application against the decision of the TCAB only.

The 1^st respondent- the Adjudicator of the TCAB

22.  The applicant was not represented when he filed his Form 86 and affirmation to support his application.  There is now a re-re-amended notice of application which rather poorly states there are seven grounds challenging the adjudicator’s decision and then proceeds to set out nine grounds.  What is missing is a further affirmation that reflects the many amendments; grounds must be supported by an affirmation which verifies the facts relied on.  It is unsatisfactory that there is no such supporting affirmation from the applicant.

23.  According to the Form 86 the grounds for seeking leave are as follows:

(1)   irrationality/Wednesbury unreasonable – the adjudicator cherry picked facts/ignored facts relevant to the applicant;

(2)   irrationality/Wednesbury unreasonable – the adjudicator cherry picked COI material and information/ignoring relevant COI to the applicant;

(3)   procedural impropriety/unfairness – failure to carry out sufficient research and enquiry into COI conditions/duty lawyer’s failing to file COI documents;

(4)   irrationality – failure to consider extended meaning of State acquiescence;

(5)   irrationality – failure to consider the existence of a consistent pattern of flagrant human rights violations;

(6)   misdirections in the law – the adjudicator has erred in law in several areas;

(7)   irrationality – a repeat of grounds 1 and 2 and a failure to assess non-refoulement protection under Article 5 HKBOR as it relates to the death penalty in Bangladesh;

(8)   procedural unfairness – failures committed by the duty lawyer scheme and duty lawyer; and

(9)   procedural unfairness – a failure of the Duty Lawyer Scheme to provide legal representation before the TCAB and in relation to the BOR 2 risk claim.

24.  Although there are nine grounds, they do overlap and can be grouped together for consideration.

Grounds 3, 8 and 9

25.  Grounds 8 and 9 and part of ground 3 are totally unrelated to the adjudicator’s decision-making process.  (Part of ground 3 will be dealt with together with ground 2 as they are related.)  They have nothing to do with him making any errors in the law or not maintaining the high standard of fairness expected of him.  They relate to the Duty Lawyer Scheme and alleged failings of the duty lawyer.  There is criticism of the failure of the scheme to represent the applicant in his appeal but representation by the scheme beyond the hearing before the Director is not automatic and considered on merits.  There are no particulars from the applicant as to any reasons given to him by the scheme, if any, why it did not continue to represent him.

Grounds 1, 2 and 7

26.  In ground 1 the adjudicator is accused of failing to take into account other sources of fear; these being the BNP party itself and the elder brother of Ujjal who is the Mayor of the city.  A careful reading of both decisions will show that the applicant himself did not ever express specific fear of these sources.

27.  The adjudicator is accused of failing to take into account the applicant’s fear of a life sentence in prison and the likelihood of a death penalty.  The adjudicator should have taken into account that the applicant would likely spend a significant time on remand and be subjected to ill‑treatment and torture whilst on remand. All matters and fears raised now but not previously by the Applicant.

28.  The applicant listed many facts he accuses the adjudicator of not taking into account in his decision-making process.  Some were facts whilst some were points that were assumptions/speculative and some inaccurate, such as the fact “the BNP was the government at that time and is at present”.  The AL came into power and were elected in on 29 December 2008 and have been in power ever since.  The applicant is a member of the AL and has no need to fear the BNP as alleged. This means he has no fears from any political parties or angles. Some points made were not facts but submissions from counsel.  Mr Tibbo submits the adjudicator made a decision based on a “defective foundation of facts” without any elaboration and submits therefore his decision was Wednesbury unreasonable.

29.  In ground 2 the adjudicator is accused of cherry picking at COI; putting weight on information of little or no relevance instead of taking into account readily accessible and highly reliable information favourable and corroborative of the applicant’s claim.  The information he referred to was discredited and his findings deemed Wednesbury unreasonable.

30.  Mr Tibbo submits the adjudicator ignored a vast amount of COI that exposed a corrupt system in the government, police and security forces and exhibited that information; exhibit MS-20.  This was “COI research not taken into account by the 1^st and 2^nd respondents” in their decisions and were published on/or before 15 June 2017. That day being relevant because it was the date the appeal was determined.

31.  This exhibit MS‑20 starts with a paper published by the United Nations Human Rights Committee (monitoring the implementation of the International Covenant on Civil and Political Rights by its State parties) dated 27 April 2017 referring to observations adopted at a meeting held on 22 March 2017.  The appeal of this applicant was held on 20 March 2017.  In this exhibit are numerous documents; for example, a paper published from Asian Legal Resource Centre giving an opinion that the Bangladesh justice system needs fundamental change to address torture.  A 2010 document from International Federation for human rights that discusses crimes punishable by death, mandatory death sentences, the justice system and terrorism.  Mr Tibbo submits relatives of persons condemned to death stress that when someone is named in a FIR he or she is automatically prosecuted.  This is under the caption of filing of false cases; the applicant here stresses he is the victim of such a scenario.  There is a document from Britannica.com entitled Bangladesh in 2004 and from Cornell Law School relating to the death penalty in Bangladesh.  Essentially, there are many documents in this exhibit and none were submitted to the TCAB.

32.  There will always be information relevant to a Country or an applicant that counsel can refer to in a leave application and submit the adjudicator failed to take into account.  However, it will not mean that the adjudicator has either erred in law or failed to adhere to a high standard of fairness.  It will not necessarily mean it is evidence of procedural unfairness.  Putting together information such as Exhibit MS‑20 and accusing the adjudicator of failing to take it into account, as in this case does not automatically mean that the information he did take into account must have been defective and therefore his decision unreasonable.  It does not advance the applicant’s application.

33.  Ground 7 also covers grounds 1 and 2 in that it suggests the decision rejecting all applicable grounds for protection was Wednesbury unreasonable.  It adds a failure of the adjudicator to consider Article 5, the liberty and security of a person “as it relates to the death penalty in Bangladesh”.  Article 5 does protect a person’s liberty; no one shall be deprived of his liberty except on such grounds and in accordance with such procedures are established by law.  If one is imprisoned unlawfully one can turn to the remedy of habeas corpus.  In any event, neither Article 5 nor Article 2 requires Hong Kong to refrain from refouling an individual to a State which practices capital punishment.

34.  There were no further particulars to this ground and it has not been expanded on.  I am unable to see how it relates to the applicant and the death penalty in Bangladesh.  He has not been tried nor convicted and this ground seems to suggest the adjudicator should have assumed he will be.  There is no merit in this ground.

Grounds 4 and 5

35.  The adjudicator is accused of failing to consider the meaning of extended State acquiescence and assessing whether there exists in Bangladesh a consistent pattern of flagrant human rights violations.  However, the applicant did not rely on the extended concept of State acquiescence.  The applicant made no report to the police or any other authority in Bangladesh.  This is not a case where State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill-treatment were being committed by non-State officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private persons.  There are no merits in these grounds.

Ground 6

36.  Mr Tibbo submits the adjudicator erred by finding that if a serious crime is committed by an asylum seeker he is automatically disqualified from receiving Refugee protection.  However, a reading of paragraphs 10 and 11 of the adjudicator’s decision does not reveal or disclose that finding.  In paragraph 11 of his decision, the adjudicator said the applicant is a fugitive from justice and did not qualify as a Refugee; referring to paragraph 56 of the UNHCR Handbook and guidelines on procedures and criteria for determining Refugee status.  Quite simply, that says persecution must be distinguished from punishment for a common law offence.  Persons fleeing from prosecution or punishment for such an offence are not normally Refugees.  The adjudicator here is repeating the paragraph that emphasises a Refugee is a victim or potential victim of injustice not a fugitive from justice.  Murder is a common law offence.  The adjudicator has made no misdirection of law here.

37.  There is a criticism of the adjudicator in his consideration of the viability of internal relocation and the irrelevance of only looking at the size of a population.  The adjudicator having found there to be no risk of persecution to the applicant had no need to consider internal relocation but nonetheless did anyway.  In his consideration of internal relocation, he did not only look at the size of the population of cities in Bangladesh; he looked at other factors as well.  There is no merit in this ground.

38.  The adjudicator said in his decision that the requirements to establish non-refoulement under persecution are virtually the same as under BOR 3; Mr Tibbo submits this direction is an error in law.  He says the adjudicator’s direction that only the State or a State agent can be a persecutor is also an error.  The requirement that the applicant had to have suffered actual serious harm in the past was also an error.  He submits the adjudicator’s test to determine a well-founded fear to be incorrect.  There is merit in these submissions.

39.  He also submits the adjudicator also failed to consider the applicant was targeted and persecuted by his enemies for his political opinion; a Refugee Convention reason.  I find no merit in this last submission.

40.  Although there is some merit in the submissions in paragraph 38 above, Article 1A(2) of the Refugee Convention provides that persecution has to be “on account of one or more grounds of race, religion, nationality, membership of a particular social group or political opinion” and the adjudicator found the alleged assault and any future risk had not been and will not be under any one of those grounds.  For that and other reasons, the situation fell far short of establishing a persecution risk.  Even if the other reasons came about through errors, if there was no Refugee Convention ground established then persecution is not a risk.  This would mean his errors become immaterial and this ground is not reasonably arguable.

41.  In the first incident in late June 2004 when a group of BNP members stormed the applicant’s office and destroyed furniture, the applicant and other AL members fled immediately unharmed.  Even on the applicant’s own facts, there was no evidence he was their personal target.  It was a matter of political rivalry.  The following day, the only other described incident of political rivalry involved a rally of around 3000 to 4000 AL members including the applicant who clashed with a group of BNP members; this led to stones being thrown, bullets being shot and bombs being thrown. The applicant ran away.  Again, this rally was not about the applicant personally.  He was later told that a stone he threw seriously injured a senior member of the BNP yet no action has ever been taken against the applicant or his family about this matter.  The AL have been in power since January 2009. On these facts, the adjudicator correctly made a finding that he did not face persecution on account of a Convention reason.  He went on to find, in any event, there was State protection available if there was any risk and internal relocation was a viable option anywhere other than his home district.

Conclusion

42.  I do not find any ground that shows there was an error of law by the adjudicator.  Nor do I see any evidence of procedural unfairness or a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  None of the grounds were arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & Anor (2007) 10 HKCFAR 676.  There is no realistic prospect of success, therefore I refuse leave for judicial review.