ZAKIR HOSSAIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL447/2017

[2018] HKCFI 830

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 447 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 in June 2007 and was arrested by the police on 9 May 2008.  He then lodged a torture claim, later taken to be a non-refoulement protection claim which was dismissed by the Director of Immigration (“the Director”) on 5 September 2014 and 8 May 2017.  The applicant then lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which was dismissed on 20 July 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 25 July 2017 and requested an oral hearing which was set down on 20 December 2017. The applicant appeared in person having had his application for legal aid refused.

2.  The basis of the applicant’s claim was that if he were refouled to Bangladesh he would be harmed or even killed by members of the Awami League (“AL”) because he was an active member of the Jamaat e Islami Chhatra Shibir unit (“JICSU”).  He was targeted by them because he was suspected of involvement in the murder of an AL member called Ullah.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in full in their decisions therefore, there is no need for me to repeat it here.  I will only summarise it.

3.  The applicant was born in 1981, had 12 years of education, was single and first moved away from his home in November 2006 before leaving Bangladesh in February 2007.  The applicant joined JICSU in 2005 and it is the student wing of the Jamaat Islami party.  The murdered victim Ullah was an outspoken member of the AL who often criticised the JICSU.  In 2006 he was murdered and his body dumped in a pond in their village.  The AL suspected the JICSU murdered him and suspects were targeted but could not be caught.  Then they began to target the applicant because he was an active member of his party; they sent members to look for him every 15 to 20 days which put pressure on him.

4.  Two months after the murder, the applicant was with two BNP friends when he was attacked by seven to eight people he assumed were AL members.  His friends escaped but he was beaten with sticks until he lost consciousness.  He sustained head and leg injuries and was later sent to hospital and admitted for 15 days.  He recuperated for a month without any harassment from any AL members but did not report the attack to the police or any other authority. After he recovered he travelled by bus to his relative’s home and hid there and other friends’ homes for about three months.  The AL members did not find him but they did continue to look for him.  The applicant could not live this way so he moved to Dhaka for a few weeks before leaving the country.  The AL have now come into power and imprisoned many JICSU members.  His life would be in even greater danger now.

5.  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”).

6.  The adjudicator conducted an oral appeal hearing and treated it as a rehearing. She correctly set out the law and key legal principles applicable to the four grounds.  She set out the applicant’s evidence and claim and considered the standard and burden of proof in such claims.  She then analysed the applicant’s evidence and considered his credibility.  She reminded herself that an applicant in such a situation does not have to be completely consistent, in fact he may exaggerate to make his case better and the centrepiece of his story will still stand.

7.  However, this applicant had many inconsistencies that involved a failure to recall timing, dates, his age at certain events.  To join the student wing of a party the applicant had to be a student and according to his evidence, he should have finished school when he was 19 in the year 2000.  When asked about this he said he was seriously ill for two years so he was about 21 years old when he finished school therefore, in the year 2002.  If that is true he could not have joined JICSU in 2005.  This led the adjudicator to doubt he was a member of the student wing in 2005.

8.  There were discrepancies in his evidence during his claim as to whether the victim was murdered in 2005 or 2006.  The copy of the handwritten note from the clinic he attended for treatment bore a different name to his and a different village address.  The applicant said he was hiding for three months after his assault but according to his passport he had travelled to Nepal and India in December 2006.

9.  The adjudicator also bore in mind that the only incident, the only attack which led to the applicant leaving his home, family and country was carried out by unknown men that he did not recognise whom he assumed were members of the AL.  That bare assertion was based on assumption. He did not report this attack to the police.  After that, the AL did not file any police report accusing the applicant of involvement in the victim’s murder nor is there any evidence the police or government officials have any interest in the applicant.  From his passport it can be seen he travelled to Nepal, India and China without trouble.

10.  The adjudicator concluded that if the applicant was assaulted, she did not believe it was because he was a member of a student wing and attacked by members of AL.  She did not believe he was a genuine claimant.  The adjudicator found the applicant was unsuccessful in showing he was at risk of torture, 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.  She confirmed the decision of the Director.

Leave to apply for judicial review

11.  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.  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.

12.  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 6, it was never part of the applicant’s case there was a need for psychological or psychiatric evaluation.  For ground 7, the adjudicator certainly set out the correct standard of proof in her decision.  There are no particulars here to illustrate where she has applied the incorrect standard.  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.  These grounds have no merits.

13.  In grounds 1, 2, and 4 it is submitted the adjudicator failed to consider relevant and up‑to-date Country of Origin (“COI”) information and research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning.  The adjudicator considered COI material and State protection; she cited her references clearly.  She had no reason to go into great detail considering the reason she dismissed the applicant’s appeal.  These grounds are not arguable.

14.  Ground 3, a failure to evaluate and make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights, has no merits.  The adjudicator did not believe the applicant was a witness of truth; not a genuine claimant.  She had no need to go on to evaluate or make such a finding of fact in relation to any violations of human rights in Bangladesh under such circumstances.  There is no merit in this ground.

15.  In addition, 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.

16.  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.

17.  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