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

HCAL533/2017

[2018] HKCFI 1340

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 533 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 22 December 2013 only to be arrested the following day.  He then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 5 January 2016 and 26 June 2017.  The applicant lodged a petition/appeal with the Torture Claims Appeal Board (“TCAB”) which was rejected on 21 July 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 21 August 2017.

2.  The applicant requested an oral hearing and appeared in person on 23 January 2018.  He requested an adjournment because he had made an application for legal aid on 9 November 2017 and had yet to receive a reply.  He had no reasonable excuse for not applying for legal aid at the same time as he filed this application.  He filed that application two and half months after filing this application and could only say that no one had told him to apply at the same time.  I refused the application to adjourn because I believe that the applicant was attempting to delay proceedings by making a late application for legal aid.

3.  The basis of his claim is that if he were to return to Bangladesh would be harmed or killed by members of the Awami League (“AL”) because the applicant had successfully convinced many AL members in his home district to switch their allegiance to the Bangladesh Nationalist Party (“BNP”).  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 need summarise it here.

4.  The applicant followed his family to support the BNP and joined this party when he was between 10 and 15 years old.  He was an active member at the village level and participated in the activities and joined rallies with friends.  In about 2003 the party selected the applicant as the general secretary at union level.  One of his responsibilities was to get supporters and voters.  In about 2006 he convinced many AL supporters to switch allegiance to the BNP which upset local AL leaders.

5.  In mid-2006 those AL leaders threatened the applicant in person and over the phone on many occasions; demanding he switch allegiance to the AL or he would be killed.  The applicant would often avoid them when they came to his home by staying with friends.  In mid-2013, whilst walking home the applicant was attacked by a large group of men brandishing hockey sticks and beaten.  He assumed they were from the AL as he had no other enemies.  He did not require hospitalisation nor did he report this to the police.  Although he did tell the adjudicator that he did report this to the police the following day but they did not entertain his complaint and in fact threatened him with imprisonment.

6.  An uncle suggested the applicant leave Bangladesh to save his life and on 16 December 2013 he went to Dhaka for three days before leaving for Hong Kong via China.  He had obtained his passport in July 2012.

7.  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”).

8.  The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  The applicant elected not to answer any questions or give evidence.  In his decision, the adjudicator set out the law and key legal principles applicable to the four grounds.  He set out the applicant’s evidence, claim and his analysis of it.

9.  The adjudicator found that even on the applicant’s own facts, he could not successfully establish a case of non-refoulement under any of the applicable grounds.  On his own facts he had been assaulted on one occasion only which did not result in serious injuries and even then, he only assumed that his attackers were from the AL without knowing for certain.

10.  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 anyone acting in an official capacity and that there was a real risk of torture as defined if refouled 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; there was no evidence he faces a genuine and substantial risk of being subjected to any ill-treatment which will attain the requisite level of severity to amount to torture or CIDTP.  There was no real risk he would arbitrarily be deprived of life, have the death penalty imposed on him or otherwise be deprived of his rights under BOR 2.  Lastly, the adjudicator found he was not at real risk of persecution on any Refugee Convention ground nor did his evidence establish a persecution risk.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

11.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions.  The adjudicator 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.  He puts forward three grounds and I find them all to be without merit and substance.

12.  The applicant has wrongly proposed both the Director and the TCAB as respondents as well as interested parties in his Form 86.  However, there are no grounds directed at the Director.  In any event, I take the view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only.  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 rehearing.  The applicant would have covered all mistakes he says the Director made in his appeal to the TCAB. Anyway, the TCAB would have looked at it to ensure no errors as it treated his appeal/petition as a rehearing.  To seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances. Those circumstances do not arise here.

13.  In the first ground, the applicant suggests that the appeal bundle was served before the oral hearing and because it was in English, he could not afford to have it translated.  This meant he arrived at the appeal hearing confused and without a full understanding of the proceedings.  The decision of the TCAB states that the adjudicator explained the process to him and the applicant elected not to give evidence.  There is no record of any complaint by the applicant of being confused or any request by the applicant for the assistance of the interpreter to interpret his previous evidence, statements and the Director’s submissions that was in the appeal bundle.  Moreover, he made this application and affirmation in English which casts more doubt on this ground.  Lastly, during the oral hearing he requested he admitted that the appeal procedure was explained to him at his appeal hearing and that he did understand it.  I find no merit in this ground.

14.  In the applicant’s second ground he criticises the adjudicator for doubting his credibility when he answered all of his questions honestly.  Judicial review is not an avenue for revisiting the assessment by the adjudicator and considering the applicant’s evidence again.  In any event, the adjudicator assessed the claim on the basis that what he said was true; he made no finding as to credibility.  There is no merit in this ground.

15.  The third ground is a complaint that the adjudicator relied on Country of Origin information that was not officially recognised, hearsay and out-of-date.  However, there are no particulars supplied by the applicant to support this ground.  I find no merit in this ground.

16.  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.

17.  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, para 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