SI v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 74/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 74 of 2015

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J U D G M E N T

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1.  This is the Applicant’s application for leave to apply for judicial review of the Decision of the Director of Immigration (“the Director’s Decision”) dated 17 June 2014 and that of the Adjudicator of the Torture Claims Appeal Board (“the Adjudicator’s Decision”) dated 11 May 2015 dismissing the Applicant’s non-refoulement claim. The basis of his claim is that he will be tortured if he is returned to Bangladesh.

The Applicant’s case

2.  The Applicant is a 45-year-old national of the People’s Republic of Bangladesh, commonly known as Bangladesh.  He is married with one child.  His wife and child and siblings currently reside in Bangladesh. 

3.  The Applicant was a committee member of the Bangladesh Nationalist Party (“BNP”) and operated as cashier for the BNP in his home town.  He was allocated funds for the furthering of the BNP’s agenda.

4.  In 2006, the BNP handed over power to the interim government and the Awami League Party (“ALP”).  The ALP became the dominant political party.  BNP members were targeted for reprisals by the ALP who criticised the BNP as having gained undue pecuniary advantages during their time in office.  This led ALP members to demand reparation from the BNP members as part of the reprisals. 

5.  Mintu was a long-time supporter of the ALP.  He was also a drug addict and criminal who had been involved in extortion, kidnapping, looting and robbery.  Mintu was frequently armed and the Applicant witnessed him on one occasion personally engage in violent acts against another person, wielding a blade.

6.  In around March 2007, Mintu and an associate went to the Applicant’s shop and tried to extort the Applicant for a sum of 500,000 Taka because, as a cashier of the BNP, the Applicant had earned a lot of money.  Mintu threatened to shoot the Applicant if he failed to pay him the demanded sum.  He showed the Applicant a pistol at his waist.  Mintu gave the Applicant one month to pay the sum.  He then kicked the furniture in the shop before leaving.  The Applicant became frightened after this incident.

7.  Neighbouring shopkeepers learnt of the incident and were also very frightened.  One neighbour reported the matter to the police.  Mintu and his associate were later arrested.  The Applicant did not report the matter to the police himself as he was afraid that it would put his life under threat as the BNP was no longer in power. 

8.  The Applicant later learned from a friend that Mintu and his associate were subsequently released without charge. 

9.  The Applicant maintains that Mintu’s influence with the ALP, in particular his connection with the ALP and an ALP politician named Saidul Karim Mintu, was instrumental in securing his release without charge.  As a result, the Applicant believed that he would not be safe from Mintu even if he were to seek protection from the police.  Saidul Karim Mintu in association with his gang were involved in extortion and murder.

10.  As a result of these events, the Applicant was fearful for his safety and that of his family.  He and his family went and stayed with his father-in-law for around three months as he made arrangements to leave Bangladesh for Hong Kong.

11.  This arrangement to leave Bangladesh was done in light of the influence and means which Mintu held, coupled with his violent nature. 

12.  The Applicant believed it was only a matter of time until Mintu discovered his whereabouts and he feared for his safety and that of his family.  Additionally, he did not wish to attract reprisals from Mintu against his family and his father-in-law because he had hidden with them.

13.  An agent in Dhaka helped the Applicant to make the necessary arrangements for him to leave Bangladesh.  Over a month prior to his departure to Hong Kong, the Applicant stayed in lodgings organised by the agent in Dhaka.

Immigration History

14.  The Applicant flew from Bangladesh to Kunming, China on 12 August 2007. He then flew to Shenzhen where he stayed for 4 days.  He entered Hong Kong illegally by boat on 17 August 2007.

15.  On 17 November 2009, the Applicant was arrested by the Hong Kong Police. On 20 November 2009, the Applicant lodged his claim for non-refoulement protection under UNCAT.  He was released on recognizance on 21 November 2009.

16.  On 25 March 2014, the Applicant’s wife told him by telephone that Mintu and his associates were still actively searching for him.

Directors Decision

17.  In assessment of the claim, the Director considered:

(a) how likely it is that the feared treatment would materialise;

(b) the claimed BOR 3 risk;

(c) whether the claim calls for persecution non-refoulement and

(d) the claimed torture risk under Part VIIC of the Immigration Ordinance. 

Feared Treatment

18.  In assessment of the perceived risk of harm from Mintu and his associate, amongst other things, it was noted that there was no bodily harm to the Applicant and that he had never been ill-treated by anyone and had never been arrested, detained or harmed by anyone.  There was a small future risk of harm.

19.  Additionally, there was no material evidence that anyone from ALP had ever been involved in the extortion or threat made by Mintu and his associate with no government officials or anyone acting in an official capacity involved in the extortion.  There was therefore no evidence that the state was involved in the threats made by Mintu in the extortion incident.

20.  The Director concluded that the Applicant’s perceived risk of harm was speculative. 

21.  Further, the Director found that the Applicant’s belated action to seek protection at the earliest opportunity was inconsistent with that of a person who genuinely fears being killed or tortured in his country of origin. 

22.  In essence, the Director concluded that there was a small future risk of harm upon return to Bangladesh and his conduct upon leaving Bangladesh undermines his credibility as there was no material evidence to suggest that the threat to the Applicant was nothing more than an attempt to extort money. The applicant was unable to establish a substantial ground for believing that he would be in danger of the claimed feared treatment. 

BOR 3 risk

23.  In consideration of the BOR 3 risk, the Director rejected the Applicant’s claim that he had met the criteria for BOR 3 risk.  He found that the Applicant did not face a genuine and substantial risk of being subjected to further ill-treatment and even on the Applicant’s case he did not encounter any actual bodily injury or intense physical or mental suffering save for the verbal threat. 

24.  The Director concluded that the Applicant was not facing a genuine and substantial risk of being subjected to ill-treatment under the BOR 3 risk. 

Persecution risk

25.  In consideration of the Applicant’s persecution risk, the Director did not accept that the claim fell within the definition of “persecution risk” and that the feared ill-treatment resulted from no more than a private extortion threat.  There was no evidence to show that the Applicant held any political opinion different from those of the government or they were not tolerated by the authorities that lead to the Applicants fear of persecution for holding such opinions. 

Torture risk

26.  In assessment of the Applicant’s torture risk, the Director rejected the Applicant’s case because the conflict alleged by the Applicant between himself and Mintu was a private extortion monetary matter and no more than a verbal threat.

27.  Further the fact that the Applicant had never been arrested or detained in Bangladesh and was able to apply for his own passport and was able to leave the country without incident was indicative of a lack of public authority involvement or that he was a target of the Bangladeshi Government. 

The Adjudicator’s Decision

28.  The Adjudicator[1] assessed the Applicant’s claim on all applicable grounds which were the same grounds as those before Director, being risk of torture, BOR, and risk of persecution.

29.  Essentially, the Adjudicator’s decision turned on the lack of credibility of the Applicant.  The Adjudicator concluded he could not place reliance on the Applicant’s evidence for a number of reasons that made the Applicant’s account implausible and lacking credibility.  Largely, the Adjudicator determined that the Applicant had been embroidering his account over time.  He provided contradictory information and failed to raise certain matters from the start.

30.  The Adjudicator concluded that he was not convinced that there were substantial grounds for believing that the Applicant would be tortured or that he had a well-founded fear of being persecuted.  He found his account speculative and that the Applicant’s claim was founded on one incident in which he was merely threatened and did not suffer any physical harm or mistreatment.

31.  In short, the Adjudicator found the claims of the Applicant baseless with no evidence adduced in support of his claims.  He dismissed the Applicant’s appeal and affirmed the Director’s Decision.

The law

32.  The court in judicial review is only to look at the legality of the underlying decision but not its merits.  Judicial review is also not a further or alternative appeal procedure.  In the context of judicial review of a decision the court in the exercise of its supervisory jurisdiction is to examine whether the Director or Adjudicator in dismissing the Applicant’s claim:

(a) committed any error of law;

(b) handled the claim without compliance with the high standard of fairness as required by the law and

(c) the substantive decision satisfied the enhanced Wednesbury test.

33.  The enhanced Wednesbury test is simply 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: Prabakar, §45; AM v Director of Immigration, §34.

34.  The test in granting leave for judicial review proceedings is whether the judicial review grounds are reasonably arguable with a realistic prospect of success. Peter Po Fun Chan v Winnie CW Cheung & Anor (2007) 10 HKCFAR 676, §§14-17.

Extension of time for leave to apply for judicial review of the Director’s decision

35.  The Director’s Decision was dated 17 June 2014.  The Form 86 was filed on 20 May 2015.  There was a delay of some 8 months which is beyond the upper limit of 3 months for applying for leave provided under Order 53, rule 4(1) of the Rules of the High Court.  At the hearing I granted the Applicant an extension of time to apply for leave to judicially review the Director’s Decision on the basis that had the Applicant tried to seek leave for judicial review within three months of the Director’s Decision but before determination of his claim by the Torture Claims Appeal Board (TCAB), his application would have been premature as he had not yet exhausted all avenues of redress prior to seeking leave.  Further the delay was not inordinately long and the Applicant acted extremely promptly after receiving the Adjudicator’s decision. 

36.  On reflection, I now have reservations about the granting of leave as the Applicant had already resorted to the alternative remedy of appealing to the TCAB.  It is trite that to seek judicial review, a person has to exhaust alternative remedies see: Kwok Ping Sheung Walter v The Law Society of Hong Kong, HCAL 73/2012, 27 September 2013, §§26-27.  The grant of leave however remains.

37.  The appeal to the TCAB is a determination of a petition by the Adjudicator involving a rehearing of the matter determined by the Director below.  AM v Director of Immigration & Anor [2014] 1 HKC 416 at §28, McWalters J (as he then was).  It requires a fresh and independent decision of the claim by the Adjudicator: X v TCAB & Anor, HCAL 143/2013, 4 September 2014, Zervos J, §29. The Adjudicator of TCAB does not discharge an appellate role.

Grounds of Review

38.  Ms Queenie Lau counsel for the Applicant advanced the following grounds of review under the below heads which I shall follow. 

Ground 1 – Error in law in interpretation of “severe physical or mental suffering”

39.  The Applicant submitted that both the Director and the Adjudicator were wrong in their interpretation of “torture” in focusing on the fact that the Applicant had not been hurt or harmed (physically) but had “only been threatened verbally.”  Ms Lau’s submissions is that they essentially failed to take into account the impact of the verbal threats on the Applicant which amounts to “mental suffering” which forms part of the definition of torture in Article 1 of the Convention Against Torture (CAT). 

40.  Ms Lau, for the Applicant, placed primary reliance on A v Director of Immigration, [HCAL 69/2010], 8 July 2014 and submitted that the Director did not explain that a threat that is only a verbal threat cannot amount to mental suffering to the requisite level of severity. She added that the definition of “torture” encompasses ether mental or physical suffering.  Although that the Applicant has never alleged actual bodily harm, his case has always been that there was a verbal threat from Mintu who threatened to kill him if he did not pay.  This threat caused the Applicant to be very afraid and thus amounted to mental suffering.

41.  Further, Ms Lau submitted the Adjudicator made similar mistakes and he erred in not explaining why a threat of death could not amount to torture.  The Adjudicator had wrongly focused on the lack of physical mistreatment in making his finding. 

42.  On a fair reading, the Director assessed the Applicant’s claim on the facts as put forth by the Applicant.  He considered the mental suffering of the Applicant when he correctly set out the definition of Torture which included “:…severe pain or suffering, whether physical or mental.”  On the evidence before him the Director did not accept the Applicant had undergone any mental suffering. 

43.  At paragraph 80 the Director said that the Applicant’s fear does not amount to BOR 3 risk because the Applicant encountered no actual bodily injury or mental suffering but only a verbal threat from Mintu and his associate.  The Director said given the nature, intensity and frequency of the treatment even if true, he did not accept that it attained the minimum level of severity to constitute a BOR risk 3. 

44.  Additionally, the Applicant made no specific assertion that he suffered any mental torture.  In reading the evidence as a whole, a vague assertion of being ‘afraid’ or ‘frightened’ clearly does not fall within the definition of torture. 

45.  The Adjudicator had assessed and considered the basis of the Applicant’s claim on the verbal death threat made to him.  At paragraph 13 of the Adjudicator’s decision in consideration of the torture risk he specifically took into account severe pain or suffering, whether physical or mental.  At paragraph 20 in consideration of the BOR risk 3 he stated that the threshold is very high, and it generally involves actual bodily harm and intense physical or mental suffering. 

46.  The Adjudicator was well aware that the Applicant’s claim was based on one incident at the market place which he was not physically mistreated but simply threatened, albeit with death if he did not comply with a demand for money.

47.  It is clear that the Director and the Adjudicator in their assessment took into account the impact of the verbal threats on the Applicant.  Both considered the verbal death threats in the context of the meaning of torture under the torture risk claim and the BOR 3 risk which explicitly included mental suffering and rejected the deaths threat amounted to torture in the context of the Applicant’s case. 

48.  There was no error of law in their interpretation.  There are no merits to this argument.  Accordingly, this ground is dismissed.

Ground 2 – Failure to make adequate enquiries into the country conditions of Bangladesh and to give reasons

49.  The Applicant ‘s main complaint centres around the fact that the Director failed to explain why he preferred some country of origin (“COI”) materials over others when those he preferred showed the availability of state protection, whilst those he discarded corroborated the Applicant’s case.  As a result of his errors in consideration of COI his conclusion regarding state acquiescence is also in error. 

50.  Ms Lau places reliance on Secretary for Security v Prabakar (2004) 7 HKCFAR 187 which makes it clear what matters should be taken into account when considering the assessment of a claim. 

51.  The Director had set out in detail and taken into account information and materials as he is required, both those supplied by the Applicant as well as from other sources in paragraphs 73, 74 and 87 of the Decision.  At paragraph 87, the Director stated :

“taking into account relevant country of origin information and the asserted primary facts of your case, my assessment is that the Bangladesh government has and will exercise due diligence to investigate your case. Furthermore, you have never been arrested, detained or imprisoned in Bangladesh. Coupled with the fact that you had applied for your own Bangladesh passport without problem and you were able to depart freely from Bangladesh without problem, indicate that you were not a target of the Bangladesh government.”

52.  The Director had made and gave adequate reasons in his decision.  There is no merit in this ground.

53.  The Adjudicator extensively set out the materials that were taken into account in paragraph 12 of his decision.  Those were borne in mind in his determination.  There was adequate consideration of the COI.

54.  In any event, even if there was material which supported the Applicant’s case the Director and the Adjudicator found on the available evidence that the Applicant was not personally at risk.  The Director and the Adjudicator had found that this was a private extortion monetary matter.  The Adjudicator stated that even if he were satisfied with the Applicant’s account of events the person (Mintu) uttering the threats was in the words of the Applicant “basically a criminal.”  At paragraph 61 of the Adjudicator’s decision, he found there was no evidence that the police were influenced to release Mintu as a result of the influence of Saidul Karim Mintu.  He specified that the reason that the local police released Mintu and his associate could well be simply that the Applicant, who admitted he was alone when Mintu made the demand, failed to report the matter to the police.  He concluded that to suggest that the police did so because of the affiliation of Mintu and his associate with AL or the influence of Saidul Karim Mintu was pure speculation.  He found no evidence that the police would acquiesce in such criminal activity. 

55.  I disagree that that the Director and the Adjudicator failed to make adequate enquiries into the country conditions of Bangladesh and to give reasons. 

56.  In my view there is no arguable basis for this intended ground of review. 

Ground 3 – Errors of the Director and the Adjudicator concerning internal relocation

57.  The complaint is that the Director and the Adjudicator erred in their conclusion that internal relocation is possible.  It was wrong for the Director to place reliance that the Applicant had encountered no problems from Mintu and his associate 4 months before leaving Bangladesh when he stayed in Dhaka and Jhenidah.  It was erroneous for the Adjudicator to observe that there was no evidence that Mintu and his associate have any influence beyond the local area. When during that time the Applicant had effectively stayed out of sight by staying at his father-in-law’s farmland and hiding himself. 

58.  On the evidence the Director and the Adjudicator were entitled to conclude it was entirely possible and realistic for internal relocation by the Applicant.  The Director considered the large size of Bangladesh and the options for internal location.  Both the Director and the Adjudicator considered the personal circumstances of the Applicant they concluded that the Applicant could relocate as it would be safe, or would be very difficult if not impossible for Mintu to locate the Applicant if he moved elsewhere in light of his age, health status and population and size of Bangladesh. 

59.  The Adjudicator determined that there was no evidence that Mintu and his associate had any influence beyond the local area.  

60.  No error of law was committed.  There is no merit in this ground. 

Ground 4 –the Adjudicator’s failure to seek clarification at the oral hearing

61.  In the present case the TCAB held an oral hearing.  The Applicant was not legally represented in the appeal.  The error complained of is that the Adjudicator failed to seek clarification at the oral hearing on matters that required clarification so they can be addressed by the Applicant. 

62.  In his decision the Adjudicator criticized the Applicant for remaining in Hong Kong for two years without seeking protection from the Hong Kong government or the United Nations High Commissioner for Refugees.  Ms Lau submitted that the Applicant could have no way of knowing that this was going to weigh so importantly in the Appeal Board’s Assessment.  The Adjudicator did not explain why he apparently rejected the Applicant’s evidence that he was told that if he surrendered to the police, in the Applicant’s words “the police caught me and immediately deported [him] to Bangladesh.”  In light of the above the Adjudicator should have further probed the answer given by the Applicant. As the Adjudicator had omitted to do so there was an error and the Adjudicator’s decision was Wednesday unreasonable. 

63.  The Adjudicator had considered all the relevant matters.  This was a finding open to the Adjudicator upon taking into account the whole of the evidence. He found features of the Applicant’s account which seriously undermined his credibility.  He said the manner of the Applicant’s arrival in Hong Kong and his conduct after arrival undermine his claim that he was here to seek sanctuary.  

64.  There was no substance or reason for the Adjudicator to further probe the Applicant’s answer.  This answer was materially inconsistent to the claimed reason for fleeing Bangladesh and looking for safety or protection in Hong Kong.  I am unable to agree that he was in error or was acting unfairly in not probing the answer given by the Applicant.  He gave reasons for finding the Applicant’s account implausible.  There was no error of law committed by the Adjudicator in not probing the Applicant’s answer. 

Credibility of the Applicant

65.  The Adjudicator found against the Applicant on credibility.  These were finding of facts.  He took into account the relevant factors.  He rejected the Applicant’s account giving detailed explanations and reasons.  He found the Applicant was not a witness upon whom reliance can be placed.  There was no error in his finding of fact.  

66.  The Director found that Mintu and his associate had no intention in pursuing the Applicant, let alone to harm him or kill him save for extorting money from him.  Notwithstanding the Applicant coming to Hong Kong to seek protection for fear of a death threat in Bangladesh the Applicant did not seek protection immediately.  His belated action to seek protection at the earliest opportunity was inconsistent with that of a person who genuinely fears being killed or tortured in his country of origin. He found that the Applicant’s conduct undermined the credibility of his claim.  He did not accept that the Applicant came to Hong Kong for seeking protection as claimed.

Conclusion

67.  I am unable to find any error of law or in the procedure before the Director or Adjudicator.  They exercised a high standard of fairness.  None of the grounds have a reasonable prospect of success. 

68.  The Adjudicator and the Director having rejected the Applicant’s claim on the basis of the Applicant’s credibility, the foundation of the Applicant’s case had gone and consequently the basis of his claims fell away.  I can find no fault in the Director or Adjudicator’s approach and assessment. 

69.  Leave for judicial review is refused.