AHAMED MOHAMMAD SAFIK v. FRASER SYME, ESQ.

HCAL448/2017

[2018] HKCFI 173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 448 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 claimed to have illegally entered Hong Kong on 6 September 2014 only to be arrested by the police on 15 September.  He lodged a non-refoulement protection claim on 18 September 2014.  It was rejected by the Director of Immigration (“the Director”) on 25 July 2016 and 1 June 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 7 July 2017.  The applicant 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 for 17 November 2017.  The applicant appeared in person at the hearing.

2.  The basis of the applicant’s claim was that if he were to return to Bangladesh he would be harmed by six men from the Awami League (“AL”) because he was the general secretary of Chatra Dal, student wing of the Bangladesh Nationalist Party (“BNP”) and had refused to join the AL as they demanded.  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.

3.  The applicant had joined the student wing in 2008 and he soon became the ward level general secretary.  He came to the attention of the union level AL president who targeted him. Since early 2011, the president and his associates have been urging him to quit BNP and join the AL.  In March 2011 the applicant was physically abused and assaulted for refusing to join.  He was attacked by a large group and suffered cuts and bruises.  No police report was made because it would be futile as they would take no action against the AL.  In mid-2011 the applicant was attacked again when he was with his brother by several high-ranking AL members and assaulted.  He did not require much medical attention but his brother was admitted into hospital for two days.  At the end of 2011 he moved to Dhaka for about six months.

4.  He returned home in mid-2012 when he felt it was safe again.  He resumed party activities.  However not long after that, he received threats but ignored them. 2013 was a tumultuous year politically whilst parties prepared for the 2014 elections but the applicant avoided all major incidents and remained unharmed during the campaign.  On election day in January 2014, the applicant was involved in a fight at an election polling booth which led to voting at that booth being suspended.  The AL won the election but supporters continue to threaten BNP supporters even after the election.

5.  One month later the police tried to arrest the applicant for his involvement at that fight on election day but he was not at home.  He immediately went to Chittagong to stay with a relative as did the other BNP members involved.  In June 2014, some Chittagong AL members went to his relative’s home looking for the applicant but his relative lied and said he did not live there.  They threatened his relative.  The applicant immediately went to Dhaka and then arranged to leave Bangladesh for Hong Kong.  He flew to Mainland China in August 2014 before entering Hong Kong illegally by boat. His family have told him that the situation for BNP supporters has become worse in Bangladesh and he should not return.

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 treated the appeal as a rehearing and conducted an oral hearing. The adjudicator correctly set out the law and key legal principles applicable to the four grounds in his decision.  He set out the applicant’s evidence and carefully assessed it.  He considered the Country information from the UK Home Office which reported on the 2014 parliamentary election.  He accepted that the BNP boycotted the election and there was political violence and turmoil; the information was broadly consistent with the applicant’s claim of being a victim of political violence.

8.  However, the adjudicator found the applicant was not an impressive witness of truth.  The evidence he gave during the oral appeal hearing was largely inconsistent with the evidence he gave in his non-refoulement claim form and previous screening interview.  The explanation he gave when asked about the inconsistencies was that he made an error at the time of preparing the claim form but that cannot explain why there were multiple inconsistencies.  And those inconsistencies were all material.  The adjudicator set out many examples of those inconsistencies in his decision.  They led the adjudicator to conclude the applicant was not a credible witness; not a genuine claimant. He rejected the applicant’s evidence and claim.  He believed the applicant had fabricated his claim to create a basis upon which to apply for non-refoulement.

9.  He found the applicant had no credible political profile and therefore only a remote risk, not a real risk that he would face harm from supporters of the AL either in his home village or anywhere in Bangladesh.

10.  As a result of his finding the applicant had no credibility, the adjudicator went on to conclude he had failed to establish he would face a real risk of persecution, a real risk of torture or CIDTP under Article 3 of HKBORO, a real risk of being deprived of his right to life under Article 2 of HKBORO and a real risk of torture as defined in section 37U(1) of the Immigration Ordinance if he is refouled to Bangladesh.  The adjudicator 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 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.  The applicant said in open court that he told the interpreter to tell the adjudicator that he believed his lawyer did not explain everything properly but he does not now recall what he specifically said nor does he know if the interpreter conveyed the information properly.  I highly doubt this is the truth.  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 COI research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning.  The adjudicator actually made no reference to any COI material or the concept of State protection.  He had no need to considering the reason he 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.  He 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.  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.  He made an election to give evidence.  There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal.

16.  There is a complaint the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is misleading and inaccurate because the Director rejected it on 1 June 2017 before the oral hearing conducted by the adjudicator on 27 June 2017.

17.  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.

18.  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