ALAMGIR HOSSAIN v. WILLIAM LAM, ESQ.

HCAL177/2017
[2018] HKCFI 47

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 177 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 national who claimed to have illegally entered Hong Kong on 9 April 2013 only to be arrested on 14 April 2013.  He lodged a torture claim on 19 April 2014 which he withdrew by letter on 4 June 2013.  However, the applicant requested to reopen his torture claim on 8 July 2013.

2.  The applicant has been to Hong Kong before having arrived as a visitor here “to sightsee and on mobile telephone business” on 25 August 2006 with permission to remain for 14 days.  He overstayed but was arrested on 14 September 2006 and was voluntary repatriated back to Bangladesh on 12 October 2006.

3.  The Director of Immigration (“the Director”) rejected his non-refoulement claim on 10 June 2015.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal/petition on 3 March 2017.  The applicant filed a notice of application for leave to apply for judicial review on 4 May 2017 and requested an oral hearing which was set down on 24 October 2017.  The applicant was absent on the hearing date.  He had applied for legal aid but it was refused.

4.  A notice of hearing dated 24 August 2017 had been sent to the applicant at the address supplied by him in this application by ordinary and registered post.  Neither letter has been returned by the post office.  This court can assume the notice was delivered to that address supplied.  The application was considered on the papers.

5.  The basis of the applicant’s claim was that he would be harmed or even killed if refouled to Bangladesh by members of the Awami League (“AL”) because he was a member of the Bangladesh Nationalist Party (“BNP”) and previously had conflicts with them.  The Director and the adjudicator of the TCAB have set out the applicant’s claim and evidence in detail in their decisions and therefore I only intend to summarise it here.

6.  The applicant was born in 1978 and received 10 years of education.  He joined the student wing of the BNP in 1997 aged 19.  In April/May 2012, he attended a rally of 300 to 400 people from both the BNP and AL.  During the rally, some AL members tried to force some BNP members to join the AL and a fight broke out.  The applicant was assaulted by four or five AL people with hockey sticks and sustained some bruising.  After he escaped, he did not report the incident to the police, seek medical attention nor has he, to date, been able to name or identify any of those assailants.

7.  He then hid at a friend’s home for about two weeks and heard from his mother that people from the AL threatened his life.  The applicant then fled to another village for several weeks where he continued to hear from his mother that AL members continued to issue threats against him.  The applicant then moved to Chittagong port for a few months where he lived without harassment or trouble from the AL but still felt unsafe and began to make arrangements to leave Bangladesh.  He actually went back to his home village to make these arrangements.  He remained at home from January 2013 until the end of March 2013 again without harassment or trouble from any AL members but still decided to leave the country.  He left Bangladesh on 5 April 2013 and arrived in Hong Kong via mainland China.

8.  The adjudicator, as did the Director, analysed the applicant’s claim under the following 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”); and

(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”).

9.  The Director considered the applicant’s evidence and claim as well as Country of Origin (“COI”) information.  He concluded the applicant’s level of risk of harm from the AL people was low if the applicant returned home.  The applicant was not a politically active BNP member back in 2008.  On his own evidence, he was assaulted once in 2012 and only superficially.  After that, the threats he repeats were hearsay evidence and for the months he lived in Bangladesh before he left for Hong Kong he lived in peace and without harassment.  Therefore, the ill-treatment he suffered did not attain a minimum level of severity.  The low frequency of past ill treatment indicated a low future risk of personal harm to the applicant.

10.  In addition, the Director found there to be State protection available from the COI information.  He considered up-to-date and objective COI information he also found internal relocation alternatives available without undue hardship to the applicant.

11.  The Director concluded the applicant did not face a genuine and substantial risk of being subjected to ill-treatment under BOR 3.  He also concluded the applicant did not warrant non-refoulement protection on the grounds of persecution risk.  Lastly, the Director considered the definition of torture under section 37U(1) of the Immigration Ordinance and concluded the applicant’s evidence did not and could not support a successful torture claim.

12.  The adjudicator conducted an oral hearing and the applicant represented himself with the assistance of an interpreter.  He had his rights explained to him and decided not to give evidence or answer any questions.  The adjudicator correctly set out the law and key legal principles of the applicable grounds in his decision.

13.  The adjudicator found the applicant story vague and some of his facts contradictory, for example he said he attended the rally in April/May 2012 for electing a prime minister in 2013 when the Country of Origin (“COI”) information reveals the election to be in January 2014.  The adjudicator doubts the applicant’s story of being attacked; during an interview with an Immigration officer he said he knew the identity of the four or five attackers but immediately said “their names might have changed”.  This response led to doubts in the adjudicator’s mind.  Other material factors affecting credibility were set out in the adjudicator’s decision.  It led the adjudicator to place no weight on the applicant’s evidence; he found nothing to support a claim.

14.  The adjudicator, nevertheless, considered the three applicable grounds as if the applicant’s evidence was true.  Bearing the definition of torture in mind, that is the definition under Article 1 and the Immigration Ordinance as identified in ground (a) above in paragraph 8, the adjudicator found there was no severe pain or suffering, whether physical or mental, intentionally inflicted upon the applicant by any of his feared enemies.  No severe pain or suffering was inflicted for purposes specifically set out in the definition nor was it inflicted by or at the instigation of or with the consent or acquiescence of a public official or other persons acting in an official capacity.  There is no evidence to show a real risk of severe pain or suffering in the future; no risk of him being subjected to torture if refouled.  Therefore, even if his misfortunes were true the torture risk claim would still fail.

15.  The adjudicator went on to consider the issue of internal relocation as well.  The adjudicator noted the Director’s analysis, COI material and finding as to why internal relocation was a viable option. The adjudicator himself set out the COI material he relied on to find it viable for the applicant to locate to other major Bangladeshi cities away from his home village without undue hardship.

16.  He also set out COI material and reports he considered to find State protection reasonably available to the applicant if he was at risk and other victims of crime.  He considers improvements in police corruption, including their professionalism and training.  He considers there are avenues for citizens to lodge complaints against the police.

17.  As far as the BOR 3 risk is concerned, the adjudicator found the applicant had not suffered any physical assault, let alone any severe injury or serious harm which reached a minimum level of severity, placing him within the criteria of CIDTP.  There was no evidence of substantial risk that he would in the future be subjected to such ill-treatment.  This meant the BOR 3 risk claim failed.

18.  No doubt the applicant was a Bangladeshi national outside of his country of nationality but the adjudicator did not consider him as having a persecution risk.  In any event, the availability of State protection was evident as well as the option of internal relocation.  The adjudicator confirmed the decision of the Director.

19.  A risk under Article 2 of the Hong Kong Bill of Rights Ordinance, (“BOR 2”) was not raised before the Director or the adjudicator of the TCAB nor is it a decision that is subject of this application.  Article 2 safeguards the right to life, “every human being has the inherent right to life. This right shall be protected by law.  No one shall be arbitrarily deprived of his life.”  The applicant himself did not credibly claim the police or any other public authority knew his life was in danger yet failed to take measures to protect him.  So far as this case is concerned, considerations under the present claim applied equally to and for the contemplation of a BOR 2 risk.  There is no need to treat this right separately.  The finding here was the applicant failed to establish a genuine risk of serious harm if refouled; it would follow his life was not at risk.  In addition, there was no evidence that the government knew or ought to have known his life was at risk.  Applying the adjudicator’s finding of fact and the reasoning above there would be no BOR 2 risk if it had been considered.

Leave to apply for judicial review

20.  I have considered, with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions.  I find the adjudicator’s decision to be without fault.  He analysed the material, claim and evidence carefully.  The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

21.  There are eight grounds in this affirmation and most contain no particulars.  Those include grounds 5, 6, 7 and 8.  As an example, for ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion.  There was no complaint made to the adjudicator concerning the performance of the lawyer assigned.  For ground 6, it was never part of the applicant’s case there was a need for psychological or psychiatric evaluation.  These grounds have no merits.

22.  In grounds 1, 2, and 4, it is submitted the adjudicator failed to consider relevant and up-to-date COI research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning.  There are no particulars provided but in any event, the adjudicator fairly considered relevant, objective and recent material that supported the applicant’s concerns as well.  In ground 4, the adjudicator need not consider whether the State had exercised due diligence when the reality was the adjudicator had dismissed the appeal/petition because he did not accept the applicant’s evidence as credible. These grounds are not reasonably arguable.

23.  The applicant complains he was not given sufficient time to prepare for his appeal, the appeal bundle was in English, he was confused during the appeal and felt the hearing was unfair to him.  I was satisfied the applicant had the assistance of an interpreter and had the procedure of the hearing explained to him.  He made an election not to give evidence.  There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal.

24.  There is complaint the applicant answered all the questions during the appeal honestly and is aggravated that his credibility was found questionable.  This submission makes no sense when the applicant elected not to give evidence or answer questions.

25.  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.

26.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave 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