MIZANUR RAHMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL642/2017

[2018] HKCFI 1418

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 642 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 first came to Hong Kong on 20 November 2005, left for China on 11 December 2005 only to return the following day.  He was given a two-day visiting Visa but did not leave as required and overstayed from 15 December 2005.  The applicant approached the UNHCR Hong Kong office in 2006 to seek refugee status but his application was rejected in the same year.  Later, he refused to give his consent for the UNHCR to release the information of that application to the Immigration Department.  The applicant was arrested by the police on 17 May 2007 and over one year later, on 26 August 2008 he lodged a non-refoulement protection claim.

2.  That claim was rejected by the Director of Immigration (“the Director”) on 3 October 2014 and 26 April 2017.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 12 September 2017.  He then filed a notice of application for leave to apply for judicial review on 20 September 2017 with a request for an oral hearing.  The applicant appeared in person on 8 February 2018 having had his application for legal aid refused.

3.  The basis of his claim was that if he were to return to Bangladesh he would be harmed or killed by the family of his girlfriend because they had had a relationship without the consent of her family which later resulted in her taking her own life by suicide.  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 was born in 1984, had eight years of education but never had any employment.  He went to study in a tutorial centre in 2003 or 2004 and met a teenager called Lucky.  They began a relationship that was discovered by her family some six months later.  They did not approve of the applicant because his financial position and social status did not match that of their family.  Lucky’s father was the most senior police officer at a police station in Dhaka.  Her brother Imran was a terrorist who had connections with the BNP party.  The applicant was told that he was also involved in drug trafficking and was very violent.  He was protected by his father’s position as a police officer.

5.  The applicant was warned by Lucky’s brother Imran that he would be killed if he did not stay away from Lucky.  Imran and his friends would harass, punched and slapped the applicant when they saw him and went to his home to repeat the threat to the applicant’s family.  They even threw stones at his home.  Despite this, in 2004 Lucky and the applicant decided to elope and went to live with his friend.  They knew the police were looking for them but without success.  After two months they moved to live with another friend and one day whilst the applicant was out helping in the fields the police came and took Lucky away.  The applicant was advised not to go home so he went to hide elsewhere.

6.  Lucky committed suicide two months later when her parents tried to force her to marry.  Her father went to the applicant’s home and told his parents that he would kill the applicant when he next saw him.  He threatened to file a false criminal report that would ensure the applicant was jailed for life.  Her father even assaulted the applicant’s father on several occasions.  His parents advised the applicant not to come home. When he heard that Lucky had committed suicide the applicant decided to leave Bangladesh for his own safety.  The applicant accompanied a family friend who often travel to China and Hong Kong on business in December 2005.

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. She correctly set out the law and key legal principles applicable to all four grounds.  She set out the applicant’s evidence and her analysis of it.  She evaluated the applicant’s credibility.

9.  The adjudicator did not find the applicant a genuine claimant, his evidence contained inconsistencies such as what police station Lucky’s father was in charge of and he mentioned at least three police stations at different times.  The applicant could not even recall Lucky’s full name.  The adjudicator found it at odds that he said he had eight years of education which meant he would have finished school in 1997 but yet said he met Lucky in a tutorial centre in 2003 or 2004.  His excuse that he had a break from education for five or six years because his father could afford to let him have a break was weak.  The adjudicator had her doubts whether Lucky existed and found his evidence fictitious.

10.  If Lucky’s family had been so powerful and there was a genuine warrant of arrest for the applicant, then he would not have found it so easy to leave the country at the airport and past Immigration.  Moreover, the applicant’s reason for being unable to produce an arrest warrant was doubted by the adjudicator.  He said his parents were unable to pay the police for a warrant yet he said they were able to afford for him to be idle for five to six years after leaving school.

11.  She did however, go on to consider the applicant’s claim on the basis that he was telling the truth.  She found that all the incidents of minor violence against the applicant and threats took place in their home village and when he was away from home the applicant lived peacefully and without trouble from Lucky’s family; this meant any risk was localised and did not extend beyond his home district.  Even when Lucky was located and taken home to her family, there was no action or violence used against the applicant even though they knew where he was living.

12.  The adjudicator found the applicant could not establish a real and substantial risk of injury or torture if he is refouled.  She found that it was an option for the applicant to relocate internally without undue hardship because he had proved it possible already.

13.  The adjudicator found that even on the applicant’s own evidence he had not established a case for non-refoulement protection.  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 members of Lucky’s family and that there was a real risk of torture by them if he returned to Bangladesh.  The adjudicator found that the applicant’s claim had failed to invoke the protection of BOR 2 or BOR 3.  Lastly, the adjudicator found his fear of ill-treatment was not well-founded and did not fall within the definition of persecution; his persecution risk claim also failed.  The adjudicator confirmed the decisions 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.  I find no fault with the adjudicator’s decision.  The same applies to the decision of the Director.  The applicant’s grounds and complaints are not made out and I find no substance in the grounds of this application.

15.  The grounds in the applicant’s supporting affirmation are not so clear or coherent but from what I can summarise he submits both decision-makers failed to properly consider his evidence. Both decision-makers failed to properly consider his well-founded fear of his enemies.  They failed to properly consider and fairly deal with Country of Origin (“COI”) information.  Both failed to give adequate reasons for rejecting the applicable grounds.  Both failed to consider the concept of extended State acquiescence.  However, there are no particulars provided by the applicant for any of the grounds relied upon.

16.  The adjudicator made a finding that even if she believed the applicant, he was not at risk under any applicable ground according to his own evidence.  She set out in his decision his findings and reasons for his findings.  She did not need to consider COI information and State protection when she did not believe the applicant was a genuine claimant.  The applicant did not rely on the concept of extended State acquiescence so the decision-makers did not consider this concept.  In any event, there is no evidence that this is 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 on 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 the grounds highlighted above.

17.  I have tried my best to decipher all the grounds in the applicant’s affirmation and I do not find any that show there was an error of law made by the adjudicator or the Director.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

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