MD BATEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL730/2017

[2018] HKCFI 1743

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 730 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 20 June 2007 only to be arrested on the same day.  Two days later he was convicted of the offence of remaining in Hong Kong illegally and was sentenced to 12 months’ imprisonment.  The following month the applicant lodged a non-refoulement protection claim. He was released on his own recognizance after he was discharged from prison in March 2008. His claim was rejected by the Director of Immigration (“the Director”) on 10 August 2016 and 16 August 2017.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 29 September 2017.  He then filed a notice of application for leave to apply for judicial review on 6 October 2017 and requested an oral hearing which was set down for 13 March 2018; he appeared in person because his application for legal aid was refused.

2.  The applicant has a long Immigration history connected with Hong Kong; he first entered using an Indian passport in the name of Shafeeq Mohammed and was arrested by the police for theft on 12 June 2014 under this identity and served a two-month term of imprisonment from 30 July 2004 before being deported on 23 August 2004.  Then, from 13 October 2004 he entered Hong Kong using a Bangladeshi passport in the name of MD Baten, his current identity which he claims to be genuine, a total of 26 times until he last departed Hong Kong on 30 December 2005.

3.  I cannot see from the papers why the applicant’s claim was not screened between 2008 and 2014 but certainly from 2014 the Director had great difficulty in interviewing the applicant.  In the Director’s decision dated 10 August 2016, in paragraph 5 the chronology is set out.  Even when the applicant was sentenced to 16 months’ imprisonment on 29 December 2015 for trafficking in a dangerous drug, the process did not appear to proceed without issues even though the applicant was in custody serving a term of imprisonment.

4.  The basis of his claim was that if he were to return to Bangladesh he would be harmed or even killed by members of the Awami League (“AL”) and the Rapid Action Battalion (“RAB”) because of his support of 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 intend summarise it here.

5.  The applicant was born in 1973, had very little education, is married with one child but has lost touch with his family.  He became a BNP member in the late 1980s and actively participated in BNP activities, rallies and electioneering.  After the AL came into power in 1997 he fled alone to India in 1999 because some neighbours told him the AL plan to attack him because of his support for the BNP.  He fled empty-handed so had to obtain a false identity in India; an Indian passport.  He stayed until the end of the year but returned home in the year 2000 when he missed his family too much.  However, he did not return to his previous home but stayed in various places with relatives near his home to avoid AL.  This was because BNP fellow members sent him messages that he was still wanted everywhere in Dhaka, even in his parents’ home.

6.  He went back to India in the beginning of 2001 because he was afraid to stay in Bangladesh and remained there until July 2002.  Between then and June 2004 he travelled between India and Hong Kong trading until he was deported back to India in August 2004. Up until then, his friends in the BNP told him that the AL were still looking for him in and around his home village.  After his deportation he went back to Bangladesh and stayed in rented properties in Dhaka and applied for a Bangladeshi passport in his real name so he could travel in and out of Bangladesh.

7.  From October 2004 to December 2005 he travelled between Bangladesh, China and Hong Kong on business. When he was in Bangladesh he would meet his two very good friends from the BNP and others to attend party meetings.  It transpired that those two good friends were in fact notorious criminals and targets of the AL.  He was associated with them and the AL filed a case against all three of them with the police accusing them of conspiring together. In about 2004 to 2005 the applicant’s two friends were shot to death by the RAB.  The applicant tried to convince an AL member of Parliament of his innocence but he was told he had to pay 4 million takas for AL to withdraw his name from the case.  He could not afford to pay.  He was told that his two friends had implicated him before they were shot dead; they said he was the Mastermind.

8.  The applicant was sure that the RAB would target him and he had to leave Bangladesh immediately; he was unable to pay the 4 million takas to save his life.  He left for Hong Kong in June 2007.  He has since been told by his family that the proceeds of crime owed by his two friends is 20 million takas and the AL says he has to pay this sum before he can return home safely.

9.  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”).

10.  The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles applicable to the four grounds.  He set out the applicant’s evidence and his analysis of it.  The adjudicator notes that on the applicant’s own facts, the risks he fears are confined to his home area and yet despite being in and around his home area he has never been confronted once personally by any member of the AL in all those years.

11.  The adjudicator took into account that his evidence almost relies entirely on hearsay from 1999 to 2007 whether he was in Bangladesh or India, to being told after he arrived in Hong Kong that he could return home if he paid 20 million takas to the AL.  Whilst hearsay evidence is not inadmissible, it carries less weight than direct evidence because its veracity cannot be tested.  Here, the adjudicator found he was unable to put any weight on the applicant’s case because of the sheer volume or multiplicity of hearsay allegations.  Simply put, his entire case was based on hearsay which meant the adjudicator was unable to accept it.

12.  The adjudicator also considered that the applicant had never been physically or mentally ill-treated by an AL member nor had he been confronted by an AL member despite them looking for him everywhere for years.  The adjudicator found this meant he was unable to show he was personally at risk if he returned home.  His fears as to the danger he would face do not exist.

13.  The adjudicator applied the law and key legal principles to the applicant’s own facts bearing in mind it was all hearsay and he placed no weight on his evidence.  He found the applicant was unable to show he was at risk of torture pursuant to the definition of torture under section 37U(1) of the Immigration Ordinance.  He found he was unable to invoke the protection of BOR 2 or BOR 3.  He found his fear of ill-treatment did not fall within the definition of persecution and his persecution risk claim failed.  Despite these findings, he found that even on his own facts his perceived risk was localised and internal relocation outside of his home area was a viable option for the applicant.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

14.  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 validated 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.

15.  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.  However, 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.  I find no merit in this ground.

16.  In the applicant’s second ground he criticises the adjudicator for doubting his credibility when he answered all of his questions honestly.  Recently the Court of Appeal in Re Lakhwinder Singh (2018) HKCA 246 at (13) said that.

“Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers. Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh even in absence of any legal error.”

This adjudicator did not doubt his credibility; he did not find his evidence inconsistent but he placed no weight on his evidence because his case was entirely made up of hearsay evidence, without any direct evidence.  He explained that his evidence was not inadmissible per se but he was not in this situation placing any weight on the applicant’s evidence because of the “multiplicity of his allegations on which the applicant’s case relies.”  He gave a good reason for that finding, the TCAB had a rational basis to find he placed no weight on the applicant’s evidence.  There are no proper grounds for interfering with such a finding.  There is no merit in this ground.

17.  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. In view of his finding that there was no weight he could place on the applicant’s evidence, there was no need for him to go into such information in detail.  I find no merit in this ground.

18.  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.

19.  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, paras 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