MSI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 184/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 184 of 2015

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J U D G M E N T

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1.  This is the Applicant’s application for leave for judicial review against the decision of the Director of Immigration (“the Director’s Decision”) dated the 31 October 2014 and that of the Adjudicator[1]of the Torture Claims Appeal Board (“the Adjudicators Decision”) dated 26 August 2015 dismissing the Applicant’s non-refoulement claim. The basis of the Applicant’s claim is that if he is expelled, returned or extradited to Bangladesh, he fears that he will be killed due to his political party allegiances.

The Applicant’s case

2.  The Applicant is a Bangladeshi national and is 37 years old.  His parents are currently living in Bangladesh along with other family members. The Applicant’s family members are members and supporters of the Bangladesh National Party (“the BNP”). 

3.  In 1998, the Applicant became a member of the Bangladesh Awami League (“the AL”) as an ordinary worker. Despite political differences of himself and other family members, the family dynamic is harmonious. 

4.  The AL and the BNP are the 2 major ruling political parties in Bangladesh with a long-standing history of hostility towards each other.  BNP was the ruling party of the Bangladesh government at the time in question.  Both parties have a strong presence in the area in which the Applicant lived.

5.  In 2003, the Applicant was admitted to Sirijganj Islamia Government College where he took part in the election for the position of the Assistant General Secretary of Chhatra League.  This was the student wing of AL in the college.  As a result, the Applicant had various party duties including inter alia the regular organisation and attendance of meetings and rallies.  This was for the purposes of recruitment of members for AL. 

6.  The Chhatra League (“the CL”) frequently clashed with the Chhatra Dal (“the CD”), the student wing of BNP, in respect of organisation of activities.  These clashes occurred 2 to 3 times per year.  On one of these occasions the Applicant was assaulted by members of CD. He did not seek formal medical treatment for the injuries but bought medicine from the local pharmacies to treat the wounds himself.  The Applicant did not seek assistance from the local authorities as he believed that the conflicts and assaults were minor.

7.  In mid-2005, the CL lost the election and CD won.  During an event organised by the Applicant’s college, there was a fight between student members of the CL and the CD.  The Applicant was a participant in the fight.  The police were called but the fight dispersed upon their arrival. 

8.  The Applicant went to a private doctor for the treatment of his wounds.  He did not attend a government hospital as he feared he would be arrested.  He sustained an injury to his right knee where it was struck by a chair thrown by one of the supporters of CD.  There is still a visible scar.

9.  Later the same evening, the Applicant came to know from friends that a student of the CD had died in hospital as a result of injuries he sustained in the course of the fight.  The Applicant also heard that the General Secretary of CD was beaten and injured by a chopper. 

10.  The Applicant was consequently scared to return to the college.  He later heard from fellow student friends, who had also taken part in the clash, that CD had held meetings and decided that revenge would be taken against committee members of CL.  All of the 41 committee members did not return to the college as a result. 

11.  The Applicant did not return to the college for 2-3 weeks and remained at the home of his cousins whom he had been living with during that time.  When he did return he saw a list of names of CL supporters posted outside the offices of the CD and CL.  The Applicant claimed that this was a list of names of members of the CL who would be killed when found.  The Applicant’s name was on this list. 

12.  The Applicant left the college immediately and remained in hiding for a month.  He did not report the matter to the police as he thought the police would not do anything even if he did so. He was concerned that the police would arrest him if he did seek assistance and report it. 

13.  After this, the Applicant then returned to his home village, where he stayed for only a week as he had been told that members of CD would tell the BNP about what had happened and where he was living.  He then went to Hossainpur which was about 8-9 kilometres from his village.

14.  After 2 months, the Applicant heard of another fight this time between AL and BNP supporters.  He did not witness the fight but nonetheless he felt unsafe and went to Dhaka.  He initially stayed at No 1 Mirpur in Dhaka for 2 weeks then moved to the Malibagh area also in Dhaka.  He remained there until he left Bangladesh on 12 February 2006.

15.  The Applicant remained in contact with his family whilst in Dhaka and was told that his father had been threatened by BNP members even though his father was also a BNP member.  His father was told repeatedly that the Applicant would be killed when found.

16.  Consequently, the Applicant’s family made arrangements for the Applicants departure from Bangladesh.  His cousin assisted him to obtain a China visa and air tickets for travelling from Dhaka to Kunming and then Kunming to Shenzhen. 

17.  The Applicant was informed, after arriving in China, that Hong Kong, not China, was the safe place to stay. Consequently, he did not seek assistance from the Chinese authorities.  He travelled from Shenzhen to Hong Kong via train.

18.  The Applicant arrived in Hong Kong from Mainland China on 15 February 2006 using his Bangladeshi passport.  He was permitted to remain as a visitor until 1 March 2006. 

19.  The Applicant applied to the United Nations High Commissioner for Refugees (“the UNHCR”) for verification of his refugee status on 13 December 2006.  The UNHCR subsequently refused his application. 

20.  He was arrested for overstaying on 7 January 2007 and was referred to the Immigration Department on 8 January 2007.  The Applicant raised a torture claim on 11 January 2007 and was released on recognizance on 23 February 2007.

The law

21.  The court in judicial review is only to look at the legality of the underlying decision but not its merits.  Judicial review is also not a further or alternative appeal procedure.  In the context of judicial review of a decision the court in the exercise of its supervisory jurisdiction is to examine whether the Director or Adjudicator in dismissing the Applicant’s claim:

(a)  committed any error of law;

(b)    handled the claim without compliance with the high standard of fairness as required by the law; and

(c)  the substantive decision satisfied the enhanced Wednesbury test.

22.  The enhanced Wednesbury test is simply an application of the Wednesbury test by means of a rigorous examination and anxious scrutiny of the decision-making process and the reasons by which the decision-maker reached his decision: Prabakar[2], §45; AM v Director of Immigration[3], §34.

23.  The test in granting leave for judicial review proceedings is whether the judicial review grounds are reasonably arguable with a realistic prospect of success Peter Po Fun Chan v Winnie CW Cheung & Anor (2007) 10 HKCFAR 676, §§14-17.

24.  The Applicant’s non-refoulement claim was considered on all applicable grounds by both the Director and Adjudicator, that is: 

(1) Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“the torture risk”);

(2) Risk of torture or cruel, inhumane or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“the BOR3 risk”); and

(3) Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“the persecution risk”).

Leave to apply for an extension of time to judicial review the Director's Decision

25.  The Director’s Decision was given on 31 October 2014.  The Form 86 was filed on 9 September 2015.  There is a long delay of some 8  months.  That is beyond the upper limit of 3 months for applying for leave provide under Order 53, rule 4(1) of the Rules of the High Court.  The Applicant has given no explanation for the delay.

26.  Mr Francis Ngan counsel for the Applicant in his written submissions at the hearing failed to address this issue but supplemented this by written submissions on the same day after the hearing.  Mr Ngan submitted that the Applicant had good reasons for delay namely that an alternative avenue was available at the time of the Director’s Decision as such the Applicant was unable to apply for judicial review until after the Adjudicator’s Decision.  At the time of the hearing I granted leave for an extension of time to apply for leave to judicial review the Director’s Decision.

27.  A person has to exhaust alternative remedies to seek judicial review see Kwok Ping Sheung Walter v The Law Society of Hong Kong, HCAL 73/2012, 27 September 2013, §§26-27.

28.  The Applicant had available to him, and utilized the alternative remedy, which was an appeal to the TCAB.  The TCAB does not discharge an appellate role.  It requires a fresh and independent decision of the Applicant’s claim.  Now upon reflection, I would have refused leave as the Applicant appealed the Director’s Decision to the Torture Claims Appeal Board (“TCAB”) and the TCAB had dealt with all matters being complained against the Director’s Decision.  Leave nevertheless remains granted. 

Director’s findings

29.  The Director assessed and found the level of risk of harm from members of CD or BNP to be low upon the Applicant’s return to Bangladesh for the following reasons:

(i) the Applicant had a private dispute with members of CD or BNP and there was no indication that they had a real intention to harm or kill the Applicant; and

(ii) The Applicant hid himself after the fight but despite the position of CD, nothing happened to the Applicant. 

30.  State protection would be available to the Applicant, which would lower or negate the level of risk.  There was no indication that members of CD or BNP were public officials or persons acting in official capacities.  The threats from CD or BNP were inflicted only in their own private capacity without any involvement of the Bangladeshi Government. 

31.  The Applicant had never encountered any problem with the Bangladeshi authorities before departing Bangladesh. 

32.  There was no evidence to suggest that reasonable state protection was not available to the Applicant if he returned to Bangladesh, even if the threats existed.  It was the Applicant’s own choice not to seek help from the police rather than the police denying the Applicant’s request for assistance. 

33.  Any perceived risk of harm was localised and was avoidable by the Applicant living away from his home village and the Ekadala area.  The Applicant had uneventful stays in a number of locations previously.  There was no substantial belief that the Applicant was being chased by members of CD or BNP.  Internal relocation alternatives were reasonable and would be available to the Applicant, which would further lower or negate the level of risk.

34.  With reference to the risk of persecution the Director concluded that as the problems were a private and personal dispute this had nothing to do with any of the Convention reasons. 

35.  The Director held there was no indication that they had a real intention to harm or kill the Applicant. 

36.  The Applicant’s non-refoulement claim was rejected by the Director. 

Adjudicator’s findings

37.  At the hearing, the Applicant gave oral evidence.  In gist, the Adjudicator found the Applicant’s account incredible and as a result found against him on credibility[4]. The Adjudicator concluded that the Applicant’s claim for non-refoulement protection failed on all applicable grounds and affirmed the Director’s Decision.

38.  In his reasons, the Adjudicator found that the Applicant was argumentative and confrontational.  The Adjudicator found his evidence vague and general in nature.  Further, the Applicant had clearly overstated or exaggerated his position in the CL.[5] He found no evidence in support of the lists of names of the targeted committee members, a list which included the Applicant’s name and could not consequently attach any weight to these unsupported assertions regarding the existence of such a list.[6]  The Adjudicator also rejected the Applicant’s assertions that there was a list and that he was the subject of any death threats.[7] 

39.  Additionally, he found the Applicant’s assertions amounted to no more than speculation and hearsay and he could not attach any weight to the Applicant’s assertions of fact as a result.[8]

40.  In assessment of past events, the Adjudicator found that even if the June or July 2005 clash did take place as the Applicant claimed, the confrontation amounted to no more than a minor confrontation between rival supporters of different political fractions who were acting in their personal capacities.  This clash was triggered by a trivial dispute with no evidence of state or official involvement. 

41.  The Adjudicator found the Applicant’s assertions to be speculative and was not persuaded even to the low standard required when considering the totality of the evidence, that the Applicant would face any future risk of ill-treatment or any ill-treatment if he is refouled to Bangladesh. 

42.  The Adjudicator considered the totality of the evidence in consideration of the torture risk and found that there were no substantial grounds for believing that he would be subjected to torture, as defined in Section 37U of the Ordinance, if he is refouled to Bangladesh.

43.  Additionally, the Adjudicator was not persuaded that the Applicant would be subject to the kind of ill-treatment as contemplated in the BOR3, or any ill-treatment were he refouled to Bangladesh.  He failed to establish his claim even to the low standard applicable.   

44.  In assessment of the persecution risk, the Adjudicator concluded on the totality of evidence that the Applicant fell well short of the low standard applicable and did not establish that there was a real chance that he will suffer ill-treatment of any sort or persecution if he were refouled to Bangladesh.  Similarly, he failed to establish that any ill-treatment would be inflicted for a convention reason. 

Grounds Relied upon by the Applicant

45.  The following grounds amongst others were relied on against the Director’s Decision by Mr Ngan.  I set out the relevant grounds:

(1)wrong assessment of the evidence that no substantial grounds to support the contention that the CD or BNP members had no real intention to harm or kill the Applicant but that it was a purely private dispute;

(2)failure to take into account the relevant country of origin (COI) conditions supportive of the Applicant’s case against the Bangladeshi authorities including the police and failing to give adequate reasons for his conclusion in preferring those against the Applicant case to those supporting the Applicant’s case;

(3)failure to give the Applicant an opportunity to respond to COI information and wrongly relying on COI to reach the conclusion that both state protection and internal relocation would be available to the Applicant; 

(4)failure in reaching a conclusion supportive of the Applicant’s case including those against the integrity of Bangladeshi authorities including the police; and

(5)error in the Director’s assessment of the Applicant’s risk of torture, ill-treatment and/or persecution, in that the Director failed to ask or make further inquiries of the Applicant.

Ground 1 and 5

46.  The Applicant during the screening interview with the Director in respect of his non-refoulement claim was accompanied and represented by his duty lawyer.  The Applicant’s lawyer was aware and in a position to know what materials and facts would assist in establishing his case.  The Director was not obliged on the facts before him to ask the questions posed by Mr Ngan[9]. These are matters that the Applicant could have produced in support of his case.  The fact that they were not asked does not entitle the Applicant to contend that there was procedural unfairness. 

47.  The Director considered the Applicant’s claim based on factual matters.  I can see no error in his assessment that this was a private and personal dispute, and the risk of torture, ill treatment and/or persecution was low.  He was entitled to conclude that the CD or BNP members had no real intention to harm or kill the Applicant.  There are no merits in these grounds. 

Ground 2, 3 and 4

48.  The Director had considered COI material.  He had given due consideration to conditions supportive of the Applicant’s case and against.  In my view, he had demonstrated a fair and satisfactory degree of balance in his approach and had given adequate reasons for his views on the available COI material.  These grounds fail.

49.  Having considered all the grounds advanced by the Applicant, I am unable to find any error of law or in the procedure before the Director.  The Director exercised a high standard of fairness. 

50.  Mr Ngan relied on the following grounds against the Adjudicator’s Decision:

(1) wrong assessment of the Applicant’s credibility;

(2) failure to inquire into the relevant country conditions; and

(3) error in consideration of the persecution risk.

Ground 1- wrong Assessment of the Applicant’s credibility

51.  Mr Ngan submitted that the Director below did not challenge the Applicant’s credibility.  On appeal, the Adjudicator rejected the Applicant’s credibility.  Mr Ngan submits there were flaws in the reasons for rejecting the Applicant’s credibility.  In the Form 86 a number of factors were relied upon in support of this ground.  I however have only set out a few points but have nevertheless considered the others mentioned. 

52.  One of the flaws contended was that:

(1)    The Adjudicator was not clear when he formed the view that the Applicant “clearly overstated or exaggerated” his position in the CL. 

53.  There is no merit in this point, the Adjudicator set out clearly the exaggeration[10]. He stated the Applicant’s case was that he was elected as Assistant General Secretary in 2003 – 2005, yet in the Applicant’s evidence he said that he was only an ordinary member of the CL from 2003 – 2005.  

54.  Mr Ngan submitted that the Adjudicator was under a duty to raise with the Applicant issues which were of concern to him which might affect his assessment of the Applicant’s credibility.  Particularly when:

(2) he labelled the Applicant as “argumentative” and “confrontational,” criticizing the Applicant’s evidence as “vague and general in nature” and that the confrontation with CD in 2005 was “lacking in detail.” 

55.  The issue of credibility is a question of fact.  The Applicant gave oral evidence during the hearing and was questioned by the Adjudicator, the Duty Lawyer and Counsel for the Director of Immigration[11]. The Adjudicator was in a position to see and hear the evidence of the Applicant and was best placed to reach the conclusion that he did.

56.  The Adjudicator took into account relevant factors and rejected the Applicant’s assertions giving detailed explanations and reasons.  It is plain from his findings that the Adjudicator disbelieved the Applicant and could not place any reliance upon his evidence.  He was entitled to do so even though the Director did not challenge the credibility of the Applicant.  There was no error in his assessment of the Applicant’s credibility. 

57.  Further, the Adjudicator did not base his finding on one point alone in the assessment of credibility but on the totality of the evidence and considering it as a whole. 

Grounds 2 and 3 failure to inquire into the relevant country conditions and error in considering the persecution risk

58.  The above two grounds fail as the Adjudicator had rejected the credibility of the Applicant and was not satisfied as to any of his claims under the above heads had been made out. 

Conclusion

59.  Leave for judicial review is refused as none of the grounds for judicial review have any reasonable prospects of success.