TOHIDUL SILAM BHUYIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL469/2017

[2018] HKCFI 833

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 469 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 entered Hong Kong illegally by boat on 31 March 2009 only to be arrested by the police on the same day.  He then lodged a non‑refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 13 February 2015 and 9 June 2017.  This later date related to his BOR 2 risk claim only.  The applicant then lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which conducted an oral hearing and dismissed his appeal on 7 July 2017.

2.  The applicant filed a notice of application for leave to apply for judicial review on 31 July 2017 and an oral hearing was set down for 22 December 2017.  The applicant did appear in person.

3.  The basis of the applicant’s claim was that if he were refouled to Bangladesh he would be killed or harmed by people of the Awami League (“AL”) because he was a member of the Bangladesh Nationalist Party (“BNP”).  Both the adjudicator of the TCAB and the Director set out the applicant’s evidence and claim in detail in their decisions therefore I only need summarise it here.

4.  The applicant was born in 1982, had 10 years of education, worked in a factory, then the family owned shop and is single.  In 1996 he joined the BNP as a member.  In 2007, the applicant became more involved in party electioneering because of the upcoming elections and was a general secretary.  The first incident happened in mid-2008 when AL members raided a BNP club, dragged the applicant out of it and slapped him twice.  He was threatened and told it would not be safe for him to stay in Bangladesh when the AL came into power soon.  They came into power in January 2009.

5.  The second incident happened two days after the AL came into power, a group of AL members came into the applicant’s family owned shop, dragged him out and slapped him.  They warned him not to do business there any more or they would kill him.  The applicant then tried to report the second incident to the police but all that happened was the AL who now controlled the police framed him for a false robbery case and the police asked him to pay 30,000 takas or else he would be charged with robbery.  Later, his brother had to pay 35,000 takas before the police would release him.  His brother advised him to leave Bangladesh or else these false allegations would keep coming.  The applicant left home on the same day and took a bus to Chittagong and stayed there for 11 days.  He then returned home to visit his sick mother but as soon as he got off the bus he was kidnapped by a group of AL members, taken to a place and beaten with hockey sticks and wood for two hours. He received some injuries but was not seriously hurt.  He was told that this was the last chance and if he was seen again then they would kill him.  He saw a doctor the following day before leaving his village and going to Dhaka.  There he prepared to leave Bangladesh.

6.  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”).

7.  The applicant has wrongly named both the Immigration Department and the TCAB as proposed respondents but seeks to apply for judicial review of the TCAB decision only therefore I will take this application to be aimed at the TCAB only.  The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or rehearing. The applicant should have covered all mistakes he thought the Director made when he lodged an appeal/petition to the TCAB. The TCAB would have looked at the Director’s decision for any errors as it was a rehearing.

8.  As I have said above, the adjudicator conducted an oral appeal hearing on 1 March 2016 and treated it as a rehearing.  He set out the applicable law for the four grounds and set out the applicant’s claim and evidence he gave during the hearing; including any inconsistencies in his evidence to date.  He found material inconsistencies in the injuries he says he suffered at the hands of AL members as well as the treatment he says he received after the attack when he went to visit his sick mother.

9.  The adjudicator considered the definition of torture as defined by section 37U(1) of the Immigration Ordinance and found the applicant could not successfully establish a torture risk claim.  On his own facts, he had not sustained any serious pain or suffering nor had he been attacked by persons who were public officials or persons acting in an official capacity.  The adjudicator found he could not show he faced a foreseeable, real and personal risk of torture if refouled.

10.  The adjudicator considered the applicant’s BOR 3 risk and found his ill-treatment did not attain a minimum level of severity; he had not suffered any serious physical or mental ill‑treatment and nor did he face a genuine and substantial risk of being subjected to such ill‑treatment if refouled.  His BOR 3 risk claim failed.

11.  As far as the persecution risk is concerned, although political opinion is a Refugee Convention reason, the adjudicator was satisfied because of the lapse of time and the lack of connection with the BNP by the applicant for over eight years meant his fear was not well-founded.  His persecution risk claim failed. The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

12.  This applicant did not file an affirmation with his application and had no grounds except to say that the decision-makers made mistakes on his claim and they did not accept his supporting documents nor put enough weight on documents submitted.  During the hearing, he reiterated the facts that he was a party General Secretary and that he lost his shop, business and money.  The police are controlled by the AL.  If the BNP wins the next election in 2019 then, it will be safe for him to go home so he only needs another year in Hong Kong.

13.  Despite the lack of grounds, I must still consider with rigourous examination and anxious scrutiny the decisions of this application.  I did and I find the adjudicator’s decision to be without fault.  He analysed the material, claims and evidence with care.  The same applies to the decision of the Director.

14.  However, I note the Director’s Notice of Further Decision dismissing the applicant’s BOR 2 risk claim came after the appeal hearing was conducted but before the appeal was determined.  The adjudicator makes no mention in his determination whether he gave any thought to the necessity of a second hearing having received the Director’s decision after he adjourned to consider his decision.  This is an omission but it is not a fatal one.  Firstly, it is not a ground of this judicial review application that it was procedurally unfair there was no second appeal hearing.  Perhaps more importantly, it was never part of the applicant’s claim that he was at risk of capital punishment inflicted by the government or faced harm from his government that would put his life at risk.  That means there would have been no need or necessity to have a second hearing; there would have been nothing more to say.

15.  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.

16.  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