RAZU NAZMUL HASAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL719/2017

[2018] HKCFI 1725

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 719 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 17 November 2012 only to be arrested on same day.  He lodged a torture claim which was rejected by the Director of Immigration (“the Director”) on 30 May 2013.  He lodged an appeal to the Torture Claims Appeal Board (“TCAB”) which dismissed his appeal on 23 July 2013.  Later, there was a further claim by the applicant taken to be a non-refoulement claim under the Unified Screening Mechanism and the Director rejected his BOR 3 and persecution risk claim on 17 March 2016 and his BOR 2 risk claim on 30 June 2017.

2.  The applicant lodged an appeal to the TCAB who dismissed his appeal on 20 September 2017.  The applicant filed a notice of application for leave to apply for judicial review on 4 October 2017.  He requested an oral hearing which was set down on 7 March 2018 and he appeared in person because his legal aid application was refused.

3.  The basis of his claim was that if he were to return to Bangladesh he would be harmed or killed by members of the Awami League (“AL”) because of his involvement with 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 need summarise it here.

4.  The applicant’s family were all BNP supporters and he says two of his brothers were involved with the party but left their village after a clash with the AL during the 2001 or 2003 elections and have not been heard of since.  The applicant himself joined as a member in 2008; attending many meetings and rallies.  He says that the BNP were in power in Bangladesh until about 2001 or 2003 when the AL came into power and then many BNP supporters had to leave the village or join the AL for fear of being beaten by AL members.  (The Director did inform the applicant the AL came into power in 2009 but his response did not make much sense).

5.  The first incident occurred in March 2009 when the applicant says he was in a BNP meeting in a neighbouring village with about 200 BNP people when they were attacked by about 50 to 60 AL people with sharp sticks.  His legs were bruised and knees injured. He heard threats to kill BNP people.  He received treatment at a clinic for his injuries.  He reported the attack at a police station but the police did not register the complaint because it was only a fight between two political parties and said they would not take any action.

6.  The second incident happened on 4 October 2012 during a BNP meeting in his home village school grounds when they were attacked by 80 to 90 AL people carrying guns, daggers and sticks.  They did not use guns during the fight which lasted about 30 minutes.  Many from both parties were badly injured but luckily the applicant was not seriously hurt in the fight.  The applicant heard threats to kill BNP people.  That night the applicant went to his uncle’s home in a different district to hide from AL people.  The police later told the applicant’s father that there was a case filed against the applicant and they were looking for him; he assumed it was filed by the AL.  The applicant heard they had also gone to the school grounds to investigate.  He does not know if he is still wanted by the police or if there is an outstanding case against him.

7.  The applicant was told later that, the following day AL people had gone to his home, damaged furniture and threatened his father and brothers when they could not find him.  They threatened to kill the applicant when they found him.  He stayed away and lived at his uncle’s house for a month.  On about 10 October 2012 the applicant’s father suggested he leave the country to stay safe and his elder brother arranged his trip to leave Bangladesh.  In fact, his elder brother had already pre-empted that decision and arranged a passport and Visa in advance because he could foresee that the applicant may need to leave the country.  On 5 November 2012 the applicant went to Dhaka to fly to China.

8.  The Director and the adjudicator of the TCAB analysed the applicant’s claim under the following applicable grounds;

(a)  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”);

(b)  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

(c)  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”).

9.  The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  He set out the law and key legal principles applicable to the three grounds.  He set out the applicant’s evidence as well as the Country of Origin information (“COI”) he considered.  He also assessed the applicant’s credibility.  At the hearing, the applicant adopted his evidence but he refused to give evidence, he refused to clarify or elaborate on his evidence contained in the appeal hearing bundle.  The adjudicator explained to the applicant that he would be unable to assess his credibility if he refused to answer his questions.  The adjudicator clearly saw issues in his evidence that required clarification just as the Director did before finding the applicant was not credible.

10.  The adjudicator concluded that there was no reliable evidence to substantiate the material assertions of the applicant.  Those included no evidence to show he was a member of BNP and that he was an active participant in activities of the BNP.  There was no evidence to satisfy the adjudicator as to why AL members would want to kill the applicant if he was just an ordinary member without any official post or rank in the BNP.  There was no evidence of his injuries nor did he believe he was injured or ill-treated as described nor at a real or personal risk of being ill-treated if refouled.  His finding was that the applicant’s evidence was unsubstantiated and untruthful.

11.  The adjudicator considered the COI and adopted the Director’s findings and found that there was State protection available and internal relocation was a viable option without undue hardship if there was any risk.  The adjudicator found the applicant was unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for the purpose of a non-refoulement protection claim.  He confirmed the decision of the Director.

Leave to apply for judicial review

12.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions.  I find the adjudicator’s decision to be without fault.  The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.  There were nine grounds but the ninth ground was struck out during the oral hearing; the applicant confirmed that there was an oral appeal hearing conducted which that ground claimed he was unfairly denied.

13.  There are eight other grounds in this affirmation and all contain no particulars.  Grounds 5, 6, 7 and 8 contain no particulars.  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.  There was no complaint made to the adjudicator concerning the performance of the lawyer assigned.  Ground 5 complains of the adjudicator taking into account irrelevant considerations and failing to put weight on facts that were favourable to the applicant but there are no particulars. Ground 7 submits the adjudicator applied the incorrect standard of proof but does not expand on that statement.  These grounds have no merits.

14.  In grounds 1, 2, and 4, it is submitted the adjudicator failed to consider relevant and up-to-date Country of Origin (“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 did consider relevant, up-to-date and objective COI despite his finding the applicant was not a genuine claimant.  These grounds are not arguable.

15.  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.  There was an interpreter present to assist if the applicant had asked for assistance.  There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal.  Moreover, this application and its supporting affirmation were made in English which pours further doubt on this complaint.  There is no merit in this ground.

16.  The applicant also criticises the adjudicator for doubting his credibility when he answered all of his questions honestly.  This is misleading when the applicant steadfastly elected not to give evidence and answer questions.  The adjudicator was entitled to draw an adverse inference when he was unable to assess the applicant’s credibility and clarify issues he identified in his evidence.  There is no merit in this ground.

17.  There is a complaint the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is misleading because the Director rejected it on 30 June 2017 and the date of the appeal hearing was 10 August 2017 with specific reference to that decision of the Director.

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