ZAHIRUL ISLAM v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 168/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 168 OF 2016

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D E C I S I O N

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INTRODUCTION

1.  This is an application for leave to apply for judicial review of the decision of the 1^st respondent (“the TCAB”), dismissing the applicant’s non-refoulement petition. 

THE APPLICANT’S CASE

2.  The applicant was born in 1970 in Bangladesh.  He asserted that in 2000, he became a life time member of the Jamaat-e-Islami Party (“JeIP”).  From 2001, he has held the position of Campaign Secretary. 

3.  One day in late 2004 he was assaulted by people with weapons, whom he recognized as people from the Awami League (“AL”).  They abused JeIP and said that they would not allow any member of JeIP to stay in Bangladesh.  The applicant had cut wounds over his body and still had visible scars on his right kneecap and near his left big toe.  He was hospitalized for about a week and took about a month to fully recover from his injuries. 

4.  After he recovered, the applicant went to a police station in early 2005 and made a general diary report on the attack.  He did not dare to return to his home and stayed in his in-laws’ house.

5.  About 1-2 months after he made the report, he received more threats from the AL over the phone.  They threatened that if he came back to his home area, he would get into trouble and no matter what he did, he would definitely get into trouble.

6.  The applicant has since come to Hong Kong 3 times.  The first time was in between August and October 2005 during which time he went to Mainland China several times to extend his visa.  He returned to Bangladesh. 

7.  The second time was in the beginning of 2006.  He stayed for about a month to find a safe place to live legally.  He returned to Bangladesh.  During this time he continued to receive phone calls from the AL who asked for his whereabouts. 

8.  The third time was in about November 2006.  This was because in the middle of 2006, some police officers went to his home in the village to look for him and told his brother that the applicant was involved in a murder case. An anonymous letter was sent to him which stated that he would get into trouble very soon no matter where he stayed in Bangladesh.  He departed Bangladesh on 17 November 2006 and arrived in Hong Kong on the same day.  He was permitted to remain as a visitor for 14 days.  He overstayed since 2 December 2006. 

9.  On 20 November 2006, the applicant registered an asylum protection claim via the UNHCR office. He was arrested by the police on 1 July 2008 for overstaying.  On 4 July 2008, he raised his torture claim.  He claimed that he was afraid to return to his country because the AL was still in power. In 2014, many leaders and members of JeIP were arrested by the police.

10.  The applicant’s non-refoulement claim was assessed on 3 bases:

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

(2)   Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR 3 risk claim”); 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 (“persecution risk claim”).

11.  The Director of Immigration rejected the applicant’s non-refoulement claim (“the Director’s Decision”).  The TCAB dismissed his appeal.  The applicant seeks leave to apply for judicial review of both decisions.

INTENDED JUDICIAL REVIEW AGAINST THE DIRECTOR’S DECISION

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

13.  The applicant could have and did appeal to the TCAB.  He failed.  The appeal before the TCAB took the form of an oral hearing when the Adjudicator considered the non-refoulement claim afresh. Those grounds (in §§15-17 of Form 86) relating to the Director’s Decision are not sustainable.  I decline to grant leave to apply for judicial review of the Director’s Decision.

INTENDED JUDICIAL REVIEW AGAINST THE TCAB’S DECISION

(1)  TCAB’s reasons for dismissing the appeal

14.  At the hearing before the TCAB, the applicant stated that he had disputes with his business partner Khosru who was a member of the AL.  Khosru told his colleagues that the applicant was a worker of the JeIP.  However, nothing happened to the applicant.  The applicant said that many JeIP members and leaders were framed up.  He was also framed up in the year 2012 when he was already in Hong Kong.

15.  The applicant admitted that since he came to Hong Kong in 2006, he has done nothing for JeIP even though he was a life member. Occasionally he would contact his party members and their leaders by phone. The applicant claimed that there were 2 problems with relocation to another part of the country if he were to return, namely, the risk of being located by the AL and what he could do to make a living.  He admitted that he lived in Dhaka with his sister and his in-laws. Dhaka was about 250 km away from his home village. He said that at present, thousands of young people belonging to JeIP were in jail and hundreds have gone missing.

16.  The Adjudicator noted a stark contradiction between what the applicant said in his claim and at the hearing.  At the hearing, he mentioned that he had problems with his business partner Khosru because the latter appropriated money from the business.  When the applicant pointed this out to Khosru, Khosru lost his temper because he was a member of the AL.  The applicant said that Khosru told his party colleagues that the applicant was a member of JeIP and openly started to victimize the applicant.  However, nothing in fact happened to the applicant.  The Adjudicator considered that this affected the applicant’s credibility as a truthful witness.

17.  On the applicant’s admission, the TCAB found that the applicant was not a high ranking official in JeIP and it seemed that after the applicant came to Hong Kong, he had done nothing for his party.  The last time he contacted them was some time in 2014 when he requested them to bring him some documents for his interview by an Immigration Officer in January 2015.

18.  The Adjudicator did not accept that the applicant was ever subjected to any physical attack by any member of the AL as he had claimed.  He found that if the applicant were to return to Bangladesh, he could be safely relocated to Dhaka, to live and work there. 

19.  Because of the low rank of the applicant in his party and the fact that he had been out of his country for coming up to 10 years, the Adjudicator found that the AL had no further interest in him as a target for persecution.  Notwithstanding the applicant’s claim that before he left Bangladesh in November 2006, he had received death threats in the form of telephone calls, the Adjudicator found that the chances of his continuing to receive such threats must be extremely slim after this long length of time.  The Adjudicator found that there was certainly no danger of any such threats, even if made, being implemented.

20.  The Adjudicator found that with a large population of 166 million people spread over a vast area of 143,998 km² in Bangladesh, the chances of the AL people, if they were still interested, finding the applicant was very minimal.

21.  Under the torture risk claim, the Adjudicator found that the applicant was never subjected to any physical attack and therefore could not have sustained any pain or suffering, severe or otherwise.  He had not fulfilled the elements in the definition of torture.  He was never assaulted by any person.  The people who might have targeted him were not public officials or persons acting in an official capacity and there was no evidence that they had been instigated by or were acting with the consent or acquiescence of a public official or other persons acting in an official capacity.

22.  Under the BOR3 risk claim, the Adjudicator similarly found that the applicant never suffered any physical or mental ill treatment.  The applicant had not shown any grounds for the existence of real risk of torture and/or cruel, inhuman or degrading treatment or punishment.  If there was any chance of being ill-treated in the future, relocation would ensure that ill-treatment would not occur.

23.  Under the persecution risk claim, it was arguable that because of the applicant’s membership of JeIP and because of his membership of a particular political opinion, he was threatened to try and was forced to join the AL.  However, the evidence did not show a reasonable possibility that, if returned, his life or freedom would be threatened. There was no reasonable possibility of any persecution risk.

24.  The Adjudicator also found that the applicant could safely relocate to other parts of Bangladesh which was far away from where his village was.  Further, because of the lapse of time since the applicant left Bangladesh some 10 years ago, he no longer had reasons to fear now.

(2)  Grounds for reviewing the TCAB’s Decision

25.  The intended grounds for judicial review have been set out in paragraphs 11-14 and 17 of Form 86:

(1)   Ground 1: that the Adjudicator failed to properly apply paragraph 2 of the General Comment No.2 of the UN Committee against Torture concerning the requirement that states must effect reforms and provide avenues of redress which were effective for the discharge of the central government’s duty of due diligence.

(2)   Ground 2: that the Adjudicator failed to take into account the concept of extended state acquiescence as propounded in TK v Jenkins.

(3)   Ground 3: that the Adjudicator failed to conduct sufficient independent enquiries into the relevant country of origin conditions and cherry-picked country of origin materials in arriving at his decision.

(4)   Ground 4: that the Adjudicator rejected the applicant’s evidence and there was procedural unfairness in that the applicant was not given any proper opportunity to deal with the challenge to evidence during the oral hearing.

(5)   Ground 5: that TCAB failed to take into account the consideration of psychological strain and threats to the applicant and that he could not stay in Bangladesh for fear of the rival members.

26.  The TCAB has correctly set out the law relating to the three grounds for the non-refoulement claim and the standard of proof. 

27.  The Adjudicator found against the applicant on credibility. The findings were of facts.  There was no suggestion that the Adjudicator has failed to take relevant factors into account, or took irrelevant factors into account or that his findings were not supported by evidence or were perverse.  In fact, the applicant’s version before the Adjudicator changed the flavour of his case from political to one of financial dispute with Khosru.  Having rejected the applicant’s case that he had been assaulted, the whole bases for the torture risk and BOR3 risk claims fell away.  The duty of the Adjudicator to consider matters stated in Grounds 1-3 simply did not arise.

28.  The applicant claimed that at the oral hearing, he was just cross-examined a little by the Director.  The Adjudicator did not ask questions.  He claimed that the Adjudicator did not point out to him that his country was big enough and that the applicant could hide anywhere.  The applicant did tell the Adjudicator, “how long I can run away?”.  He had friends and relatives but he feared that right at the airport something could happen to him.  He could have been taken away.

29.  The submission before this court focussed on how inadequately the Adjudicator considered the Country of Origin materials.  The applicant could not point to other aspects of the evidence that he could have challenged if given the opportunity.  I repeat paragraph 27 above.  Ground 4 is unarguable.

30.  The Adjudicator had considered but did not believe that there was ever any physical attack by any member of the AL.  The Adjudicator was aware of the threats made by phone but found that the chance of the applicant continuing to receive the death threats to be slim and no danger of their being implemented.  Again, these were findings of fact and the applicant has not shown in what way the Adjudicator had failed to take into account relevant evidence or took into account irrelevant evidence.  Ground 5 is unarguable.

31.  In conclusion, none of the grounds advanced are arguable and fail to meet the threshold requirement for granting leave in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, at §§14-17.  I therefore decline to grant leave and dismiss the application.