RE FAR

HCAL 76/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 76 OF 2015

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BETWEEN
	FAR	Applicant
and
	DIRECTOR OF IMMIGRATION	1st Respondent
	TORTURE CLAIMS APPEAL BOARD	2nd Respondent

____________

Before: Hon Wong J in Court

Date of Hearing: 11 April 2017

Date of Judgment: 5 May 2017

_______________

J U D G M E N T

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1.  Leave has been granted for the Applicant to apply for judicial review against the following decisions :

(1)   The decision of the Director of Immigration (hereinafter called the Director) made on 21 November 2014 rejecting the Applicant’s non-refoulement claim; and

(2)   The decision of the Deputy Chairman of the Torture Claims Appeal Board / Adjudicator of the Non-Refoulement Claims Petition Office (hereinafter called the Adjudicator) made on 11 May 2015 dismissing the Applicant’s Appeal / Petition.

only on Topics B and C of Ground 2 as well as Ground 5 relied upon by the Applicant.

BACKGROUND

2.  The Applicant is a national of the People’s Republic of Bangladesh. 

3.  On 9 October 2005, the Applicant was permitted to stay for 14 days as a visitor, until 23 October 2005.  He had been to Hong Kong for several occasions before.  This time, he did not leave and overstayed since then. 

4.  Around July 2006, he made an application to UNHCR for refugee status.  This application was unsuccessful.

5.  On 10 August 2007, before the result of his refugee application was known, he was arrested for overstaying.

6.  Around 1 September 2009, he claimed non-refoulement protection under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).  A few days later, he was released on recognizance.

7.  Having assessed all applicable grounds, including torture risk, BOR 3 risk and persecution risk, the Director by a Notice of Decision dated 21 November 2014, rejected his claim. 

8.  The Applicant appealed / petitioned against the decision.

9.  The appeal / petition was heard on 24 April 2015 by the Adjudicator[1]. By the Decision dated 11 May 2015, the Adjudicator dismissed the appeal and affirmed the decision of the Director.

10.  The Applicant sought an Order of Certiorari to bring up and quash the said decisions of the Director and the Adjudicator (collectively called the Respondents).

FACTUAL BASIS OF THE NON-REFOULEMENT CLAIM

11.  The events which the Applicant relied upon took place in 2005 when he was about 30 years old. 

12.  The Applicant joined the Bangladesh National Party (BNP) in 1999.  In 2004, BNP lost to the Awami League Party (ALP) in the national elections.  Members of ALP started targeting people of BNP.

13.  Around late April 2005, Russel, the ALP leader at Lalbagh, approached the Applicant with a group of people demanding him to leave BNP and join ALP.  The Applicant did not agree.

14.  Around May 2005, Polash, a BNP member was shot to death by a person said to be an ALP member.  There was police investigation but nobody was arrested.

15.  Around June 2005, Russel approached the Applicant with a group of ALP members, quoting the case of Polash and threatened him that if he was not to join his party he would be beaten up badly.  Given the political climate in the area, the Applicant did not report the threat to the Police.

16.  Around July 2005, Russel assaulted the Applicant with a group of people by punching, kicking and beating him for 5 minutes and said he would kill him if he was not to leave his party.  They even used a chopper to slash the Applicant on his left arm.  The Applicant sustained bruises all over his body as a result and he still carries a scar on his left arm.  It took him a month to fully recover from the injuries.  No report to the police was made because of the worries of further attack and more serious consequences.

17.  In the circumstances, the Applicant decided to leave the country.  He flew to Hong Kong on 29 August 2005.

18.  He has been maintaining contact with his family who are still living in Bangladesh.  He was told that Russel had come to his house two or three times to look for him and that Russel said he (the Applicant) would face serious consequences if he returns.

GROUNDS OF REVIEW

19.  The Applicant was represented by Mr Andrew C H Y Leung.  The grounds of review based on which leave for application was granted are :

(1)  (Topics (B) and (C) of the original Ground 2) Error or misdirection in law by the Respondents on :

(i)  meaning of State acquiescence; and

(ii)  meaning of severe physical or mental suffering.

(2)  (Original Ground 5) Irrationality in that there was no or no sufficient basis for the decisions of the Respondents that the Applicant would face no risk of torture if he is returned to Bangladesh.

APPLICATION FOR LEAVE TO FILE AND SERVE ADDITIONAL AFFIDAVIT EVIDENCE

20.  In the Inter-parte summons dated 14 March 2017, the Applicant sought leave to file and serve additional affidavit evidence.

21.  The additional evidence sought to be filed and served is the 5^th Affirmation of the Applicant in which two areas of information are set out :

(1)  Updating the situation in particular that the Applicant learnt from his recent contact with family that Russel and members of the ALP were still looking for him and as the ALP are in power, it is using its power and influence to sanction political violence on members of the opposition party and that victims dare not report as the police and / or security forces are corrupt; and

(2)  COI papers :

(a)  Bangladesh : Opposition to the government, issued by the United Kingdom Home Office in February 2015;

(b)  Joint NGO Alternative Report to the UN Human Rights Committee on Bangladesh; and

(c)  Amnesty International Report 2016/17 – Bangladesh.

22.  In the 5th Affirmation, the Applicant also set out his belief, and the grounds for it, that relocation would not be effective and sufficient remedy for him.

23.  Mr Yang-Wahn Hew, Counsel acting for the First Respondent (the Director), complained that although notice of intent to use further affidavits had been given it was late.  In any case, he opposed the application on the ground that the information deposed in the Affirmation is irrelevant for the purpose of the present hearing.  He stressed that judicial review is not a further appeal.  He cited Dhiman Jasvir v Torture Claims Appeal Board[2], in which Barnes J said :

“The court, in the exercise of its supervisory jurisdiction in the context of judicial review is to examine whether the Director and / or the TCAB in dismissing the Applicant’s claim (a) made any error of law; and (b) handled the claim without compliance with the high standard of fairness as required by the law.”

24.  Having regard to the content of the additional affidavit which the Applicant sought to adduce, I agree that the information provided in the 5^th Affirmation is not relevant for the purpose of this hearing and therefore leave should not be granted for admission of the evidence. Indeed, it was the stance of Mr Leung himself that this Court should not place itself in the position to undertake the primary decision making exercise which was the duty of the Respondents.  There is therefore no basis for this Court to take into account any further evidence.  For this reason, leave to adduce this proposed additional evidence was refused.

DISCUSSION AND CONSIDERATION

GROUND 2

TOPIC  B

25.  Mr Leung submitted that the Respondents erred or misdirected themselves on the meaning of State acquiescence.  It was submitted that they had only considered the active form of State acquiescence but not passive or extended acquiescence as stated in AM v Director of Immigration [3].

26.  He submitted that the extended form of State acquiescence is relevant to the Applicant’s case since he was subject to sectarian political violence from private actors acting within the ALP due to his political affiliation, work and support for BNP.  COIs produced respectively before the Respondents show that the government is aware of the political violence but does not act with due diligence to provide adequate protection to the victims, in particular the Applicant.  It was further submitted that the Government of Bangladesh is aware of the high level of corruption that exists within the police force and security forces and yet does not apply due diligence to have it reasonably controlled, thus resulting in inadequate protection for the Applicant from the ALP.  Mr Leung submitted that there were ample country reports and COI materials before the Respondents which indicate this form of State acquiescence on the part of the Bangladesh government.

27.  Relying on the cases of TK v Jenkins[4], AM v Director of Immigration^[5], Re JKF[6], Mr Leung submitted that since the Respondents erred in law by failing their duty to apply the concept of extended form of State acquiescence to the Applicant’s case, this Court should only place itself in the position of the primary decision makers when the case is clear cut and the final outcome is inevitable. 

28.  In Re JKF[7], the Court of Appeal stated :

“Thus, assessment of the extended concept of State acquiescence and the subsidiary questions which may arise on the facts of each case under that concept should primarily be undertaken by the primary decision makers. When the primary decision makers did not conduct the necessary assessment or did not make all the necessary inquiry relevant to such assessment, or conduct an oral hearing which the case required, the court should not readily place itself in their positions to undertake such exercise on its own. It is only in very clear cases that the court should reject an application for judicial review on the basis that the final outcome is inevitable.”

Mr Leung submitted that the present case is not such a case.

29.  Leave of application was granted on this ground as there was no expressed finding by either of the Respondents on the issue of extended form of State acquiescence.

30.  Despite so, Mr Hew argued that, on a fair reading of the respective decisions as a whole, the Repondents had both duly considered and decided on the issue.  Dhiman Jasvir v Torture Claims Appeal Board[8], NS v Director of Immigration & Torture Claims Appeal Board[9] and Ratan Gain v Director of Immigration & Torture Claims Appeal Board[10]were cited in support of his argument.

31.  Mr Hew pointed out that the Respondents had both referred extensively to COI information and had demonstrated that each of them had carried out relevant assessment of the situation.  After assessment and consideration, the Director indicated that it was “not accepted that the Bangladesh government was, is or will be unwilling and unable to provide reasonable and sufficient state protection” against the risk of perceived harm, and that it was “not accepted … that state protection will not be provided to you from the authorities upon your return to Bangladesh”.  The Adjudicator said “state protection is available should he resort to [such] on his return to Bangladesh”.

32.  In each of the authorities[11] cited by Mr Hew, neither the Director nor the Torture Claims Appeal Board expressly mentioned the issue of extended form of State acquiescence but in none of these cases application for leave to apply for judicial review was granted since it was found that the issue had in effect been decided upon.

33.  Each case has to be decided on its own particular circumstances.  The approach in the decision making process should be examined to decide whether it has been demonstrated that the issue had in effect been considered and decided.

34.  As the Court of Final Appeal held in Secretary for Security v Prabakar[12], “the courts will on judicial review subject the Secretary’s determination to rigorous examination and anxious scrutiny to ensure that the required standards of fairness have been met.” Lam J[13] said in TK[14] :

“In the context of a judicial review of a decision of an adjudicator, the crucial issues are : whether the adjudicator committed any error of law in his interpretation of the CAT; whether the procedures adopted at the hearing of the petition satisfied the high standard of fairness; whether the substantive decision satisfied the enhanced Wednesbury[15] test.”

35.  Traditional form of State acquiescence takes place when a State, knowing that acts of torture and ill-treatment are taking place and by whom they are taking place and being able to prevent and punish them, deliberately turns a blind eye[16] to what is occurring.  This form of acquiescence involves a conscious decision not to exercise the authority of the State against those committing acts of torture and to withhold the protection of the State from those who are the victims of such torture[17].  The complaint of Mr Leung is not that there was no consideration on the issue of traditional form of State acquiescence, the complaint is on lack of consideration, and decision, on the extended concept of State acquiescence.

36.  In examining whether the Respondents committed any error of law in failing to consider and decide upon the issue of extended form of State acquiescence, substance is always more important than form.  The question therefore is whether the Respondents had each demonstrated that he had considered and decided on the issue.  In AM v Director of Immigration[18], it was said that the following has to be established to allege the existence of extended form of State acquiescence :

(1)   State authorities know or have reasonable grounds to believe that acts of torture are being committed by non-State officials;

(2)   State authorities fail to exercise due diligence[19] to prevent, investigate, prosecute and punish such non-State officials;

(3)   the failure of the State to exercise due diligence in response to its knowledge or reasonable grounds to believe of the actions of the non-State actors, enables those non-State actors to commit acts of torture with impunity; and

(4)   the State’s indifference or inaction provides a form of encouragement and/or de facto permission to the non-State actors to commit acts of torture.

37.  McWalters J[20] said this extended form of State acquiescence is in the nature of a failure of the State to discharge normal State functions of providing security to its citizens either generally or in a particular location or of a particular class, or a particular religion etc..  His Lordship stressed that, not every failure to govern will be within the extended concept of State acquiescence, it is confined to where there is a failure by the State to exercise due diligence[21].  This suggests that the State has the capacity to exercise State authority and provide the needed protection but, knowing or having reasonable grounds to believe that acts of torture are taking place, fails in making proper use of that capacity to prevent the torture, punish those responsible and protect its citizens.  This is an avoidable failure to govern[22] and is wholly different from the failed State syndrome where, for whatever reason, the State has lost its ability to govern.

38.  His Lordship added :

“But, again, it is not every failure to exercise due diligence that will be within the extended form of State acquiescence. The failure must be so gross, or of such a scale, that it enables those persecuting the claimant to do so with impunity.

Finally, the State’s failure to exercise due diligence must have the consequence of providing a form of encouragement or de facto permission to those engaged in acts of torture.”

39.  In TK, Lam J cited with approval Nowak & McArthur and held that the “duty of due diligence is not the same as the duty of reasonable protection”.  This duty only arises upon the State authority having knowledge or ought to have grounds to believe that acts of torture or ill-treatment are being committed.

40.  On a judicial review my role is not to determine the merits of the Applicant’s claim but to ensure that there was no deficiency in the decision process. 

41.  The Respondents had the duty to state what decision he had made on an issue he had to deal with and the reasons for his decision.  In the present case, it is consensus between the parties that if the Respondents have failed to make a decision on the issue of State acquiescence it is not for this Court to assess the merits and play the role of the primary decision maker.  The question therefore is whether the Respondents have each made the required decision on the issue and given sufficient reasons for it.

42.  With the relevant principle in mind, I perused carefully the Decisions of the Respondents.  

43.  No doubt, the Respondents have each made reference, and quite extensively, to COI papers.  Nevertheless, it by itself does not necessarily mean that the concept of extended form of State acquiescence had been considered.  Reference to such material might just have been made in the course of considering only the traditional form of State acquiescence.

44.  The Director stated that the claim of the Applicant was assessed on all applicable grounds, including torture risk, BOR 3 risk and persecution risk.

45.  He made certain observations including the followings :

(1)   The Applicant was subject only to low intensity and frequency of ill-treatment, he had not been inflicted with serious suffering;

(2)   He remained safe and unharmed before he left the country;

(3)   There was no indication that Russel and his associates have escalated further harm against him;

(4)   It was a private dispute in political context;

(5)   There was no indication that the threat and attack from Russel and his associates were initiated by the government of public authorities or inflicted by or at the instigation of or with the consent or acquiescence of the Bangladesh government;

(6)   Albeit the ALP was currently the ruling political party, it does not necessarily mean that each and every act done by its party leaders / members represents the stance of the ALP or that of the government;

(7)   The Applicant had never reported the death threat and attack to the police, he did not do so because he claimed the police was under the influence of the ALP, even if a report was made the police would not offer him any assistance or protection, and if the report was found out he would be killed;

(8)   There was information in COI which corroborated the assertion of the Applicant;

(9)   As regards the death of Polash, it was not necessarily the case that it was not under further investigation by the police;

(10)   It was the Applicant’s own volition not to report, availability of state protection lowered or negated the level of risk;

(11)   By reference to COI information, the Director observed that the Bangladesh Police Force, though not flawless, in exercise its duties has taken actions to curb its corruptive practices and improve its performance.

46.  The Director further said[23]  :

“All these objective country information above shows that the Bangladesh government has taken proactive measure to improve police professionalism and to fight against corruption. Moreover, a fair and proper judicial process is available in Bangladesh and the Bangladesh authorities / police are willing and able to offer reasonable and sufficient protection to citizens and has taken proper actions on culprits having committed offences against the law even they are political party leaders / members. Besides, the Bangladesh authority had shown the determination to reform, enhance the responsibilities and duties of police. All these point to the direction that, you would be given the same protection by the Court and the Bangladesh police should you wish to seek assistance from the government authority upon your return. As such, it is not accepted that the Bangladesh government, was, is or will be unwilling and unable to provide reasonable and sufficient state protection against your perceived risk of harm from Russel and his associates, even if established, would not be available to you if resorted to upon your return to Bangladesh.”

47.  When the Adjudicator considered the appeal, he had conducted an oral hearing to enable the Applicant to have a chance to supplement and clarify what he had stated before, including in the Claim form, the interview and what he had made known to the Director.  The Adjudicator found the Applicant had lied and said “for his lies, inconsistencies and reluctance to give answers, his application ought to be dismissed.”

48.  However, the Adjudicator did not stop there, he considered the case further.

49.  Having referred quite extensively to COI papers, he said this[24]  :

“All these showed that the Bangladesh authorities would not act in favour of the ruling party and the Bangladesh government has taken proactive measures to improve police professionalism and to fight against corruption and that a fair and proper judicial process is available in Bangladesh. State protection is available should he resort to on his return to Bangladesh.”

50.  Having regard to what a tribunal has to consider in relation to the concept of extended State acquiescence, as outlined above in paragraphs 36-39, I am satisfied that each of the Respondents had the concept of State acquiescence in mind when he considered the matter before him and each of them had concluded that it was not a situation of State acquiescence, both in the active and the extended sense.  Clearly, both Respondents did not find there was a lack of due diligence which is material in establishing State acquiescence in the extended form.

51.  I am also satisfied that the Respondents had each made the decision having considered the COIs quoted in the decision.  Further, I am satisfied that those COIs were sufficient material for them to form the decision the Respondents had each made and I am not persuaded that the decision, are unreasonable in the Wednesbury sense.

52.  Mr Leung also criticised the Respondents to have erred and / or misdirected themselves in law in applying the relevant legal principles, by suggesting that the Applicant would need to prove past exposure to torture in order to establish substantial grounds for believing there is a future danger of torture.

53.  The director, in his Decision, stated “… it is not accepted that any severe pain or suffering within the definition of ‘torture’ under section 37U(1) of the Ordinance had ever been inflicted on you in the past”.  In AM, the Adjudicator’s decision was quashed as it was found that his reasoning suggested that he thought there had to be past exposure to torture in order to establish substantial grounds for believing that there is a future danger of torture.  However, it does not mean that past experience should not be taken into account.  In the same judgment, McWalters J said:

“answering the question will (of whether there are substantial grounds for believing that if the Applicant is returned he would be in danger of being subjected to torture) require a consideration of the applicant’s claim so that some appreciation can be gained of why the applicant says such a danger exists and from whom that danger would come. If the claims to have been the victim in the past of torture or other forms of harm from the same persons or entities whom he claims will subject him to torture on his return then that will clearly be relevant …”[25].

This applies in the present case.  I do not consider the Director had erred in taking into account the harm which the Applicant claimed he suffered before.  The Director had also remarked that the low intensity and frequency of past ill-treatment is indicative of a small future risk of harm upon return.  I do not find fault in this, in particular as the Director had demonstrated that he had considered the whole case before he made the decision as the issue.

54.  The Adjudicator had also taken into account his finding that the applicant had not suffered serious injuries.  However, it was not the only matter based on which he considered the issue.  He had the following observations as well :

(1)   the behaviour of the Applicant was inconsistent with the behaviour of someone who genuinely wanted to seek protection from the government;

(2)   the problem which the Applicant had with Russel was only personal.  The Applicant had left the country for almost 10 years, as far as the Applicant was aware, Russel had gone to his house 2 to 3 times to look for him, on dates which should not be recent.  It is unlikely that Russel still has any interest in him. 

(3)   The Applicant cannot establish a substantial ground for believing that he would be in danger of being subjected to torture simply by reference to a pattern of gross flagrant or mass violation of human rights irrespective of the relevance of such situation to his personal concern.

55.  I am satisfied that the Adjudicator had given due consideration to the issue and had not erred.

56.  Mr Leung had also criticised the Respondents for placing undue weight on the fact that the applicant had not approached the police for assistance.  Again, this is a matter which the Respondents were entitled to take into account.  They had duly considered the ultimate questions and the related issue of State acquiescence.  I am satisfied that the Respondents had not erred in their consideration and the ultimate conclusions were not unreasonable.

TOPIC  C

57.  Mr Leung submitted that the Respondents both erred or misdirected themselves on the meaning of “severe physical or mental suffering”.

58.  Relying on A v Director of Immigration[26], Mr Leung stressed that in the context of torture, pain or suffering can be physical as well as mental.  His submission is that the Respondents had both reached their decisions only on the basis that the Applicant had not suffered any severe pain and suffering in the past, and failed to consider mental pain and suffering[27].  It was under a firm belief that he would be killed eventually, or that the harass on him would not stop, the Applicant fled the country.  In the light of his experience before fleeing the country, the Applicant was in real fear that he would be tortured or killed if he returns to Bangladesh.  Such a death threat is a mental suffering of such a level of severity that it amounts to torture.  The Respondents had failed to consider this.

59.  Mr Hew stressed that the Applicant had never himself claimed to have sustained any mental suffering before starting the judicial review procedure, the first time this matter was raised was when the Amended Form 86 was filed. 

60.  In my judgment, this accounts for why the Respondents appeared to have focused their consideration on physical suffering.

61.  Pain or suffering in the definition of torture can be physical or mental.  Whilst it may be reasonable to expect mental impact on a person who experiences life threat, the degree of mental impact varies between different persons.  

62.  If mental impact on the applicant was so strong that it amounts to torture, one would expect an express reference to it, in particular as the Applicant was under legal representation.  The first mentioning of mental suffering was when the applicant filed the application for leave to apply for judicial review.

63.  In his consideration, the Director was alive to the applicant’s claim to have fear of death threats.  Having considered certain matters which are all relevant, the Director formed the view that the conduct of the Applicant was “inconsistent with that of a person who genuinely fears being killed or tortured”.

64.  In my judgment, the Director had given sufficient consideration on the issue of torture, be it physical or mental.

65.  The Adjudicator also has similar observation.  I see no fault in his decision and the process.

GROUND  5

66.  This is a catch all ground.  In the light of my findings on the other grounds and what I said in the judgment in relation to the leave application, this ground fails as well.  I do not consider the decisions of the Respondents unreasonable in the Wednesbury sense.

CONCLUSION

67.  Application for judicial review fails on all grounds.  I will not make the order to quash the decision of the Director and the Adjudicator.

ORDER FOR COSTS

68.  I make the following Nisi Costs Order, to be made absolute should no application to vary be made within 14 days :

“Costs of the applications to be to the Director, to be taxed if not agreed. The Applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.”

  

  

(A Wong) Judge of the Court of First Instance High Court

  

Mr LEUNG, Andrew Christopher H Y, instructed by John M Pickavant & Co., assigned by Director of Legal Aid, for the applicant

Mr HEW Yang-Wahn, instructed by Department of Justice, for the 1^st respondent

Attendance of the 2^nd Respondent was excused