BEPARY MOHAMMAD ARSHED v. GERARD PAUL MUTTRIE, ESQ.

HCAL171/2017
[2018] HKCFI 100

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 171 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 claimed to have entered Hong Kong illegally on 8 November 2013 only to be arrested on the same day.  He lodged a torture claim on 11 November 2013 but upon the commencement of the unified screening mechanism on 3 March 2014 his claim was taken to be a non-refoulement protection claim. That claim was rejected by the Director of Immigration (“the Director”) on 30 December 2015 and 1 November 2016.  The applicant lodged a petition/appeal to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 25 April 2017.

2.  The applicant filed a notice of application for leave to apply for judicial review on 2 May 2017 and requested an oral hearing which was set down on 15 September 2017.  Since the applicant had applied for legal aid in a timely manner but his application had not yet been decided before the hearing date, the application was adjourned to 14  November 2017.  On that date, the applicant was in person because his application for legal aid had been refused.

3.  The basis of the applicant’s claim was that if he were to be refouled to Bangladesh he would be harmed or even killed by the Awami League (“AL”) because he was a supporter of the Bangladesh National Party (“BNP”).  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in full in their decisions therefore, I only intend to summarise it here.  The applicant was born in 1982, had eight years of education, is married with a child and has his own retail phone shop business.

4.  Like his family, he was a keen BNP supporter and attended meetings and rallies.  In 2012 he was attacked twice during BNP rallies by AL supporters.  In the first one, a bomb was thrown which injured many BNP supporters and the applicant suffered a ruptured eardrum which required surgery.  In the second incident, two months later, on 1 December, he was hit over the head during a rally and his head wound required stitches.  The first incident was reported to the police but the police refused to act; even suggesting may be it was the BNP who set off the bomb.  After the second incident, some AL supporters reported the BNP supporters to the police suggesting they attacked them.  They named 60 BNP workers and leaders.

5.  The applicant worried he was one of those named; the local BNP president told him to make himself scarce and unavailable.  The applicant then left home for Dhaka over an hour away and lived there for about 11 months peacefully without harassment or trouble before deciding to go overseas to save his own life.  A travel agent suggested he travel to Hong Kong.  He travelled to China in November 2013 before entering Hong Kong on foot.

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 adjudicator arranged an oral hearing and treated the appeal as a rehearing. He correctly set out the law and key legal principles relevant to the four applicable grounds.  He sets out the burden and standard of proof.  The adjudicator then considered the applicant’s credibility, the evidence he gave during the hearing as well as in his previous statements, the Country of Origin information he found relevant as well is that referred to by the Director.

8.  The adjudicator accepted that it was well-known that violence did break out from time to time between AL and BNP supporters in Bangladesh.  This meant the applicant’s story of being hurt in two clashes was plausible enough.  During the political climate in 2012, according to the Country of Origin material it was possible.  However, the applicant was just a supporter and nobody of any rank and importance in the party so unlikely to be an actual target.

9.  The applicant’s evidence did not suggest that anyone from the AL was particularly out to hurt him personally or target him.  There was no evidence that he was one of those named by AL supporters to the police.  He admitted he did not know if he was listed by the AL supporters.  Moreover, the applicant went to Dhaka and lived there peacefully for 11 months, applied for a passport without drawing the attention of anyone from the government or that party.  He then left the country without incident which shows no one from the authorities were after him.  There was nothing to suggest they would be after him if he returned.

10.  The adjudicator made a finding there was no evidence to suggest that anyone in the AL was personally after the applicant.  There was no substantial risk or real risk or chance he would suffer harm from either the authorities or the AL in his area or, if there was such a risk, the adjudicator made a finding internal relocation was a viable option.

11.  As far as the torture risk was concerned, the adjudicator saw no evidence there was a real chance that the authorities or the AL would target the applicant personally and inflict serious, severe pain and suffering on him if he returned.  The adjudicator accepted that if the AL did go after him personally he may not be able to access State protection but he saw no real risk of this occurring.  Therefore, the torture risk claim failed.

12.  As far as the BOR 3 risk was concerned, the adjudicator saw no substantial risk that the applicant would be subjected to ill-treatment reaching a minimum level of severity; the BOR 3 risk claim failed.  He also found no risk that the authorities or the AL would arbitrarily deprive the applicant of his right to live; the BOR 2 risk claim failed.

13.  The applicant claimed himself unwilling to avail himself of the protection of his own country because he feared persecution by the AL.  However, the adjudicator found no evidence to show his fear, if he had one, was well-founded.  There was insufficient evidence to suggest that the applicant a mere supporter or rank and file supporter was being targeted for persecution by the political party.  The persecution risk claim failed. The adjudicator confirmed the decision of the Director.

14.  The adjudicator did consider internal relocation.  In persecution cases, if a person can avoid the feared persecution by relocating within his country to a place where he would have no well-founded fear of persecution and where the protection of his country would be available to him and where he could live reasonably and without undue hardship; he cannot then claim protection outside of his own country.  The adjudicator considered the applicant’s age, health and work experience as well as the geographical size and population of Bangladesh before concluding that he could relocate within Bangladesh.  After all he lived in Dhaka for 11 months without incident. Even though the AL are everywhere, there is nothing to suggest that anyone, if anyone at all, other than local AL supporters from his home area had any interest in him.

Leave to apply for judicial review

15.  I have considered, with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions.  I find the adjudicator’s decision to be without fault.  He analysed the material, claim 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.

16.  There are eight grounds in this affirmation and most contain no particulars.  Those include grounds 5, 6, 7 and 8.  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; it is a bare assertion.  There was no complaint made to the adjudicator concerning the performance of the lawyer assigned.  Ground 6 complains of a failure to call for medical reports but it was never part of the applicant’s case which made such psychological or psychiatric evaluations necessary.  These grounds have no merits.

17.  In grounds 1, 2, and 4, it is submitted the adjudicator failed to consider relevant and up-to-date 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 very fairly considered relevant and recent material that supported the applicant’s concerns and made a finding there was not sufficient state protection in the applicant’s local area if there was a real risk to him if refouled.  These grounds are not arguable.

18.  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. I was satisfied the applicant had the assistance of an interpreter and had the procedure of the hearing explained to him.  There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal.

19.  There is a complaint the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is clearly mistaken because the Director rejected it on 1 November 2016 and the appeal hearing date was 1 December 2016.

20.  There is complaint the applicant answered all the questions honestly and is aggravated that his credibility was found questionable.  This submission makes no sense because this adjudicator found this applicant was probably a witness of truth.  He did not find his credibility questionable.

21.  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.

22.  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