ASGHAR ADNAN v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 99/2018

[2018] HKCFI 1569

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 99 of 2018

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:

1.  The applicant is a 38-year-old national of Bangladesh who arrived in Hong Kong on 15 February 2006 with permission to remain as a visitor up to 1 March 2006 when he did not depart and instead overstayed until he was arrested by the police on 25 June 2006.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by supporters of rival political party Bangladesh Nationalist Party (“BNP”).  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Village Paikkandi, District Faridpur, Bangladesh. After leaving school he worked as a hospital assistant in Faridpur and in 2004 joined the political party Awami League (“AL”).  However, as most of his co-workers in the hospital supported BNP and frequently harassed him during work, he decided to quit his job in 2005 to devote more time participating in AL’s activities, and in 2006 he was elected the local leader of AL in his Paikkandi Village.

3.  One day in 2006 while he together with some of his fellow members of AL were putting up posters in the village, they were approached by a group of BNP supporters who demanded that they stopped doing so, and when they refused, they were attacked by the BNP supporters during which the applicant was kicked to the ground, and when he tried to escape he broke his right ankle.  Eventually he was able to flee from the scene and went to the hospital for treatments.

4.  Afterwards the applicant did not report the matter to the police as he did not believe that it would help, but he took shelter at his sister’s place in Kadirdih where he stayed for one and a half month without any incidents, but when he heard that the BNP people were still looking for him with threats to kill him, he decided that it was not safe for him to remain in Bangladesh, and so he travelled to Dhaka where he flew to China on 12 February 2006, and from there he entered Hong Kong on 15 February 2006 and lodged his torture claim which was rejected by the Director on 4 May 2012 while his appeal was also dismissed on 11 June 2012.  However, in his subsequent application for judicial review under HCAL 8/2013, his claim was on 25 March 2014 remitted to the Director for further determination under the Unified Screening Mechanism as a non-refoulement claim, and for which he completed a Supplementary Claim Form on 24 July 2014 with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 23 December 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 of the HKBOR (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“persecution risk”).

6.  In his decision the Director found no substantial risk of the applicant being harmed or killed by BNP supporters given the low intensity and frequency of past ill-treatment from them and that it is doubtful that they would still have any adverse interest in him after all these years, that state protection would be available to the applicant if resorted to in particularly now that AL has become the ruling party of Bangladesh, and that reasonable internal relocation alternatives are available in Bangladesh with a large population of 160 million people spread across a vast territory of more than 130,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move safely to other areas away from his home district such as Dhaka. 

7.  The applicant appealed against that decision to the Torture Claims Appeal Board (“the Board”), for which he attended an oral hearing on 13 November 2017 before the Board during which he gave evidence and also answered some but not all of the questions put to him by the adjudicator for the Board.  On 8 January 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found the applicant to be a very poor witness, that his evidence lacking in appropriate detail and context and were generally improvised, that during the course of the hearing he demonstrated a clear reluctance to answer any more questions from the adjudicator or provided only the barest of responses, and rejected his claim of any real risk of harm to him from BNP supporters if refouled to Bangladesh as not credible.  

9.  On 22 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  procedural impropriety in the Board’s failure to take into account of the concept of extended state acquiescence in the consideration of his claim;

(2)  procedural impropriety for failing to conduct a critical analysis or sufficient independent inquiries into the relevant COI, or to consider his supporting document such as his party certificate and card, his medical discharge certificate, his election poster in support of his fear of real risk, or to provide any justification as to why certain COI were preferred and for cherry picking certain COI, and for failing to consider his physical and mental pain suffered from his injuries in the consideration of his claim;

(3)  error/misdirection in law for failing to consider the psychological harm on him which was limited only to physical harm in the assessment of his claim;

(4)  unreasonableness on the part of both the Board and the Director in their assessment of his claim on all applicable grounds; and

(5)  irrationality in the decision of both the Board and the Director that he would not be subjected to harm upon him being refouled to his home country.  

10.  These are all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decision, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

11.  There is also no basis for his complaint that the Director and the Board had failed to properly consider those documents produced by him, as it is clear that both the Director (paragraphs 9 – 11 of his decision) and the Board (paragraphs 33, 81 – 83, 85 – 86, 91 – 92 of its decision) did exactly that in their respective decision with detailed analysis and reasoning in their consideration of the applicant’s claim and in the Board’s assessment of his credibility.  

12.  The fact is that the applicant’s claim was rejected by the Board essentially on his credibility that any attempts by him to challenge or criticize any improper reliance of COI seem to me futile and pointless, as it is a well-established principle that the evaluation of evidence is essentially a matter of the Director and the adjudicator who are entitled to make such evaluations based on the facts and evidence available to them which the court will not usurp their role as primary decision-makers. With the adjudicator’s clear findings against the applicant as to the core of his claim as an important member of AL being pursued by supporters by rival BNP, I am unable to find any basis or merits in any of the grounds of his for interfering with the decision of the Board.     

13.  In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

14.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

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