RIAZ MD v. FRASER SYME, ESQ.

HCAL432/2017
[2018] HKCFI 139

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 432 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 arrived in Hong Kong illegally from the mainland on 17 July 2014 and was arrested on the same day.  Two days later he lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 22 July 2016 and 24 April 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which was rejected after an oral hearing on 6 July 2017.

2.  The applicant filed a notice of application for leave to apply for judicial review on 21 July 2017 and requested an oral hearing which was set down for 14 November 2017.  He had applied for legal aid but it was refused so he appeared in person.

3.  The basis of the applicant’s claim was that if he were to return to Bangladesh he would be harmed or even killed by Miah and his people from the Awami League (“AL”) because the applicant was a member of the Bangladesh Nationalist Party (“BNP”) who had encouraged voters in his home district to boycott the January 2014 national general election.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in full and in detail in their decisions therefore, I only intend to summarise it here.

4.  According to his non-refinement claim, in early 2013 he became a member of the BNP and helped with meetings and rallies. BNP leaders instructed members to encourage voters to boycott the January 2014 elections.  In late 2013, the local AL leader Miah and 10 to 12 men confronted a group of BNP members including the applicant and warned them to stop doing this as it was illegal and threatened them.  The BNP group ignored this on the instructions of their leaders.  Miah and his supporters confronted the applicant again when he was with other BNP supporters a week later and issued the same threat; this time saying they could be assaulted or go missing. This time BNP leaders told them to stop encouraging voters to boycott.  The AL went on to win the elections to retain government.

5.  After the win, the AL held a victory rally in the applicant’s home district and some BNP members’ homes were attacked.  When the applicant heard some AL supporters outside his home, he escaped through the back door and took a bus to Dhaka.  He later heard his home was damaged.  His local leader told him not to come home.  He stayed with his brother in Dhaka but in April 2014, his brother was threatened by AL members.  They said if the applicant was living with him, they would kill them both if they found the applicant at his home.  The applicant was frightened for his life and his brother made arrangements to send him to Hong Kong via the mainland after obtaining a passport and China Visa.

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 in his decision, set out correctly the law and key legal principles for the four applicable grounds.  He also set out the applicant’s background and claim.  He went on to consider the applicant’s evidence from his statements and interviews as well as the evidence he gave in answer to questions during the appeal hearing.

8.  After a careful assessment of the applicant’s evidence the adjudicator concluded the applicant was not a credible witness.  He found inconsistency when comparing his evidence given in statements to his answers given during the appeal.  He also found some of his evidence implausible.  When he gave the opportunity to the applicant to explain some inconsistencies, the adjudicator was not persuaded by his explanations.

9.  The adjudicator rejected the applicant’s claim in its entirety; including his claim he was a member of the BNP in 2013, played any role for the party prior to the election, was threatened by the AL and had to flee his home village in fear of his life.  He did not believe his family home was attacked and his brother threatened.  He did not believe supporters of AL ever came looking for the applicant at the time of the election or afterwards.  He did not find the applicant a genuine claimant.

10.  The adjudicator set out in full in his decision the reasons why he did not believe the applicant; he gave many examples of the inconsistencies and why he rejected his evidence. His finding was justified. He accepted that Bangladesh was a country without democracy and prone to political violence in particular during the time of the 2014 election but concluded the applicant was a person with no credible political profile and therefore there is no real risk from any AL leader or his supporters either in the applicant’s home village or elsewhere in Bangladesh if refouled.  The applicant’s claim failed.  In light of that finding there was no necessity to consider internal relocation.

11.  Based on his finding, the adjudicator found the applicant had failed to establish any risk of persecution, torture or CIDTP or being deprived of his right to life.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

12.  I have considered the papers and grounds of this application. This application lists eight grounds of judicial review.  Many involve the adjudicator’s failure concerning COI material and information. Those include grounds 1, 2 and 5.  Ground 3 criticises the adjudicator’s failing to consider a consistent system of human rights violations and ground 4 criticises him for failing to consider whether State protection exists in Bangladesh.  Particulars have not been given in relation to each of these grounds and complaints.

13.  However, this is not fatal when the concept of State protection and whether or not there is a consistent system of human rights violations in Bangladesh is not relevant; when the applicant cannot establish there is a real and personal risk to him if refouled.  Consideration of these concepts do not arise unless there is a substantial risk or a real personal chance he will be tortured or ill-treated if refouled.  In this case, the adjudicator made that finding there is no substantial risk or a real personal chance.

14.  Grounds 6, 7 and 8 also lack particulars, for example, there was never any basis for the adjudicator to call for psychological and psychiatric evaluation: it was not part of the applicant’s case.  There were no complaints by the applicant or particulars given to the adjudicator recorded in the decision that the assigned duty lawyer failed him previously.  None of the above grounds have any merit.

15.  There were specific matters complained of in the affirmation and those include a delay in providing the applicant with the appeal bundle.  He says he was ill-prepared and confused during the hearing. However, there is no record in the decision of any complaint raised before the adjudicator.

16.  There is a complaint the Director did not screen the BOR 2 risk before it was considered on appeal but this is inaccurate and misleading when the Director made a decision on 4 April 2017 rejecting the BOR 2 risk claim and the oral hearing for the appeal was not heard until 26 June 2017.

17.  There is also a complaint that the TCAB considered Country of Origin information and news sources that were hearsay and fairly outdated but again, this is inaccurate and misleading when the adjudicator had no need to consider this information when he rejected the claim on credibility.  Moreover, what information he did consider led him to agree with the applicant that there were instances of political violence in Bangladesh both at the time of the 2014 election and ongoing.  The information was broadly consistent with the applicant’s claim.

18.  Ultimately, 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.

19.  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