SUJAN MOHAMMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL485/2017

[2018] HKCFI 452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 485 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 claims to have entered Hong Kong illegally on 27 October 2015 only to be arrested on the same day.  He lodged a non-refinement protection claim which was rejected by the Director of Immigration (“the Director”) on 20 December 2016.  He lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 24 July 2017.  He filed a notice of application for leave to apply for judicial review and requested an oral hearing which was set down on 23 November 2017.  The applicant appeared in person hav claims if he were to be verbally he would be harmed or killed by his enemies ing had his application for legal aid refused.

2.  The basis of his claim was that if he were to be refouled to Bangladesh he would be harmed or killed by his enemies who belonged to the Awami League (“AL”) because of his affiliation with the Bangladesh Nationalist Party (“BNP”) and he will be arrested and tortured by the police because of his involvement in the murder of Monir on 13 September 2015.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in detail in their decisions therefore, I only intend summarise it here.

3.  The applicant received 10 years of education, has worked as a farmer on family land as well as in Singapore for many years.  He is married with a daughter.  He joined the youth wing of BNP in 1999 and was a general secretary in 2002 and heavily involved with party activities.  He then went to Singapore for a few years and returned in 2009 when he joined the BNP as an ordinary member.  He experienced clashes with the AL and bias from the police.  He went back to Singapore in September 2012 for two years.  When he returned he was appointed publicity secretary.

4.  A month after his return and appointment, he was out with four other BNP members when they were intercepted by a large group of AL members who verbally abused them.  When the confrontation became violent against the BNP group, they ran away.  The applicant learned to be careful and avoid AL members.

5.  The BNP called for a national strike on 5 January 2015 which led to a very violent confrontation between the two parties, with the police siding with the AL.  The applicant was injured and bruised all over. He and his fellow members ran away when the police started to fire guns into the air.  All the shops in the area were damaged in acts of vandalism.  The applicant took a bus to Chittagong, quite far away.  His father told him that the police had come to his house accusing the applicant of vandalising market shops earlier that day.  The applicant stayed in Chittagong until 5 March when he went to Dhaka and then flew to Singapore.

6.  He had to return in April because he had no employment in Singapore.  He went straight to his sister’s home and not his own home because of fear of the AL and the police.  In July he went back to Chittagong but in September he did go home to celebrate the “EID” festival with his family but he travelled at night and hid in his house.

7.  Whilst the applicant was away, his father had been warned in June 2015 by AL members that he could no longer farm his land any longer.  Although it was government land, his father had farmed it for many years.  The AL had gone to court and obtained permission to occupy and enjoy the land.  His father was warned not to plant a thing on the fields.

8.  In September, after the applicant had returned home for the festival, his father went to the field with his brother to plant some seeds but some 8 to 10 AL members appeared.  When the applicant’s father said he had farmed the land for years he was assaulted.  A neighbour called the applicant at the family home who immediately rang up some BNP members who went to the field.  Some 20 to 25 BNP members went there.  There was in a violent clash between two groups of people.  One AL member named Monir died in this fight; the applicant did not know how he died or who killed him.

9.  The applicant and his brothers fled the scene, leaving his father behind.  The applicant immediately went to Chittagong alone and to this day does not know where his brothers went.  He has not been in contact with them since.  His neighbour told him later that the police arrested his father and uncle for the death of Monir.  He learned that there was a complaint filed by the victim’s father naming the applicant as the first suspect and it included the applicant’s brothers, his father, his uncle and many others.  Apparently, he heard there was a wanted notice with his photograph on it circulating around all police stations.  A friend told him it was published in newspapers.

10.  The applicant’s friend in Chittagong agreed to help him arrange a visa for China and the applicant left on 20 October 2015.  He says he had to pay 50,000 Taka through his travel agent to bribe Immigration officers to let him leave Bangladesh.  His father and uncle are still in police custody according to his mother and sister and have been subjected to torture by the police.

11.  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”).

12.  The adjudicator treated the appeal as a rehearing.  He correctly set out the law and key legal principles for the four applicable grounds.  He set out the applicant’s claim and evidence as well as his consideration of it.  The adjudicator had his doubts about the credibility of the applicant’s claim and gave the applicant an opportunity to give explanations where necessary.

13.  The adjudicator took issue with the documents the applicant produced, the post-mortem report for the murdered victim and the wanted notice.  He set out why he did not find them authentic and why he did not believe the applicant’s explanation even after giving the applicant time to adduce additional evidence.  He concluded they had been fraudulently manufactured, perhaps for the purposes of assisting the applicant in pursuing his claim.

14.  Even if the adjudicator had accepted the documents, which he did not, they actually undermined the applicant’s account of the murder.  The dates of the post-mortem and the subsequent arrest did not coincide with his account of his movements.  The adjudicator set out in detail the inconsistencies highlighted by the documents and the applicant’s own evidence.

15.  Ultimately, the adjudicator found the fraudulently manufactured documents substantially damaged the applicant’s credibility; he was not a witness of truth.  He did not believe the applicant has ever been accused of Monir’s murder and is a person of any interest to the authorities.  It follows that the adjudicator does not believe he was involved in a fight with AL members over land his family farmed.  The adjudicator does not accept his father or uncle were arrested or tortured as claimed or that the police are searching for him or that he is a wanted person nationwide.

16.  The adjudicator asked him questions about his membership of the BNP and found discrepancies in his answers.  The adjudicator had information as to how one joins the BNP which differed from the applicant’s information.  The adjudicator put the differences to him but did not accept his explanation.  He did not believe he ever held any formal position of general secretary or publicity secretary.  In fact, he seemed to have almost no understanding of matters which one would expect of somebody holding those positions.  The adjudicator did not believe the applicant had been moving around Bangladesh because of a fear of AL members looking for him.

17.  In light of his findings, the adjudicator considered there is not a real risk of the applicant suffering any harm should he return to Bangladesh.  While the country information indicates far from a perfect human rights situation in Bangladesh, not all people in Bangladesh are at risk of harm.  The applicant is certainly not at risk of harm in the way he had claimed.

18.  With regard to a torture risk, the adjudicator did not consider there to be anything which creates a risk of severe pain being inflicted on the applicant should he be refouled to Bangladesh so there are no substantial grounds for believing him to be in danger of being subjected to torture if he returned home; his torture risk claim failed.

19.  With regard to a BOR 3 risk, there is 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.  The adjudicator found the applicant is not at risk of being subjected to torture or CIDTP if he returned to Bangladesh; his BOR 3 risk claim failed.

20.  In light of the adjudicator’s findings, there was no real risk the applicant will arbitrarily be deprived of life, have the death penalty imposed on him or otherwise be deprived of his rights under BOR 2; his BOR 2 risk claim failed.

21.  Lastly, the adjudicator found he was not at real risk of persecution on any Refugee Convention ground nor did he have a well-founded fear of being persecuted for any of the Refugee Convention grounds; his persecution risk claim failed.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

22.  I have considered, with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the adjudicator’s decision to be without fault.  He analysed material, claims 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.  In any event, what was in the supporting affirmation does not cover all the grounds set out nor are they substantiated.

23.  This application lists eight grounds of judicial review.  Many involve the adjudicator’s failure concerning Country of Origin (“COI”) material and information.  Those include grounds 1, 2 and 5.  Ground 3 criticises the adjudicator for failing to consider a consistent system of human rights violations and Ground 4 criticises him for failing to consider whether State protection exists in Bangladesh.  Firstly, particulars have not been given in relation to each of these grounds and complaints.  Secondly, the adjudicator has made little reference to COI material; referring only to material from the applicant.  Having found no evidence, the applicant would be personally at risk if refouled and making the specific finding the applicant was not a genuine credible claimant, there was no need for the adjudicator to consider human rights violations and State protection in Bangladesh in any depth.

24.  Grounds 6, 7 and 8 also lack particulars.  There was never any basis for the adjudicator to call for psychological and psychiatric evaluation.  There were no complaints by the applicant nor any particulars given to the adjudicator that the assigned duty lawyer failed him previously.  In fact, during the oral hearing the applicant confirmed to this court that he had no complaints against the duty lawyer.  None of the above grounds have any merit.

25.  There were specific matters complained of in the affirmation and those include a delay in providing the applicant with the appeal bundle.  He says he was ill-prepared and confused during the hearing.  However, during the oral hearing the applicant confirmed to this court that he did not raise this with the adjudicator.

26.  There was also a complaint the BOR 2 risk was not screened by the Director before it was determined by the adjudicator.  It is clear from the Director’s decision that he dealt with all applicable grounds at the same time; he did not deal with the BOR 2 risk later.  During the oral hearing the applicant confirmed to this court that a friend drafted his affirmation; this friend did not read the papers carefully.  This complaint has no merit.

27.  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.

28.  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