AHMED MOHAMMAD SUJON v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 1025/2017

[2018] HKCFI 1231

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1025 of 2017

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant being absent;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 26-year-old national of Bangladesh who entered Hong Kong illegally on 19 June 2014 and was arrested by the police on the same day.  After he was referred to the Immigration Department for investigation, he raised his non-refoulement claim on 22 June 2014 with the Department on the basis that if he returned to Bangladesh he would be harmed or killed by members of rival political party Awami League (“AL”), and that he would be wrongfully persecuted by the police for false charges of extortion, robbery and assaults.  He has since been released on recognizance pending determination of his claim. 

2.  The applicant was born and raised in Sonargoan Village, Kharera Kasba, Brahmanbaris of Bangladesh where his parents and two siblings still live.  After leaving school the applicant did not work but joined the Bangladesh Nationalist Party (“BNP”) as an ordinary member attending occasional meetings and rallies.

3.  One day in late 2013 while the applicant was in the local BNP office with other members, some AL supporters stormed the office and attacked the BNP members with clubs and knives, and although the applicant was able to escape, he became so frightened by the attack that he did not return home but instead took shelter at his uncle’s home in Dhaka for half a year, during which he heard from his parents that some AL members had come to their home looking for him threatening to kill him, and then in March 2014 the police were also looking for him with arrest warrants for charges of extortion, robbery and assault which he suspected were as a result of false claims being made against him by the AL members.

4.  As a result the applicant was advised by his father to leave Bangladesh for his own safety, and so he departed on 3 June 2014 for Mainland China, and from there he sneaked into Hong Kong on 19 June 2014 where he subsequently lodged his non-refoulement claim, for which he completed his Non-refoulement Claim Form (“NCF”) on 21 December 2015 with legal representation from Duty Lawyer Service. 

5.  By a Notice of Decision dated 20 May 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), 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 (“HKBOR”), Cap 383 (“BOR 3 risk”), and 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”).

6.  In his decision the Director considered on the facts of the applicant’s own case the low intensity and frequency of past ill-treatment from the people of AL is indicative of low risk of harm to the applicant upon his return to Bangladesh, that his dispute with the AL people was in nature a private matter without any involvement of the state or the police and hence state protection would be available to him if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 166 million people spread across a vast territory of more than 143,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man to move to areas away from his home village such as Dhaka where he can live and work safely and free of any threats from the AL people.

7.  By a Notice of Further decision dated 25 July 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

8.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal he filed on 2 June 2016, and for which he attended an oral hearing on 6 September 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 24 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board for the reasons and analysis detailed in paragraphs 51 – 81 found the applicant’s evidence in a number of key aspects of his claim that he would be at risk of serious harm in Bangladesh due to his political activities in support of the BNP as confusing, vague, inconsistent and far from convincing, and did not accept his evidence about what occurred to him in Bangladesh was based on his personal or actual experience, and considered that it was fabricated to create a claim to be owed protection.  In particular the Board did not accept that the applicant was a formal member or supporter of the BNP or that he was ever involved in any activities of a political nature in Bangladesh, and therefore he was never a person of adverse interest to the AL members or supporters, nor was he ever subjected to adverse treatment by any of them including laying any false charges against him to the police, and therefore concluded that he was never subjected to threats or any adverse attention due to his claimed political activities, and therefore rejected his non-refoulement claim on all the applicable grounds.  

10.  On 7 December 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he set out his grounds for his intended challenge as follows:

(1) failure on the part of the Director and the Board to conduct sufficient enquiry into the relevant COI; 

(2) irrationality/erroneous misdirection in law by both the Director and the Board for taking into account of irrelevant consideration or failing to take into account of relevant consideration of his claim including the intensity and frequency of the attacks on him, the psychological impact of the threats and assaults and the false claims against him, and failing to recognize the situation in Bangladesh where members of opposite parties are being persecuted by the ruling party;

(3) procedural impropriety on the part of both the Director and the Board for failing to consider the concept of state acquiescence of the threats against him;

(4) errors/misdirection in law for failing to consider the psychological harm to him due to the threats from the AL members and supporters; and

(5) failure on the part of the Board to provide him with sufficient time to obtain supporting documents for his claim. 

11.  For his ground (1) about failure to conduct sufficient inquiry into COI, in the absence of any particulars or specifics from the applicant and having examined those COI listed and referred to in the decisions of both the Director and the Board, and given the fact that applicant’s claim was rejected by the Board essentially on his credibility, I do not find any merits in this complaint of the applicant.

12.  As for his ground (2), again the applicant did not provide any particulars or specifics as to what irrelevant consideration had been taken or what relevant consideration that had not been taken by either the Director or the Board.  Given the detailed analysis and reasoning of their findings as set out in their decisions, and as noted of the Board’s findings as to his credibility, I do not see any basis for the applicant’s complaint in this ground. 

13.  Regarding ground (3), again given the Board’s findings against the applicant on credibility, and in the absence of any reliable evidence implicating the government of Bangladesh or the police in the alleged threats from AL in any way even if true, I fail to see why it was necessary to consider specifically the concept of state acquiescence in this case, and that in any event from the COI referred to and considered by the Director in paragraphs 18 – 22 of his decision and later also by the Board, I am satisfied that they did take into proper consideration of that issue, and hence there is no justification in the applicant’s complaint under this ground.  

14.  Similarly for ground (4) in respect of any possible psychological harm to the applicant, as noted above under ground (2), all aspects of possible mental and physical harms to him arising from his asserted threats have been properly considered by both the Director and the Board, and I do not find any merit in this ground of the applicant.

15.  As for his ground (5) of not being given sufficient time to provide supporting documents for his claim, I note in paragraphs 47 – 50 of the Board’s decision of the discussions between the applicant and the adjudicator which took place at his oral hearing before the Board about production of further documents in support of his claim, such as proof of his membership in BNP which he claimed were in Bangladesh but which he could obtain including a letter from BNP if given time but rejected by the Board.  That was then in September 2017, but even now at his leave application before me, the applicant still did not produce any further documents in support of his claim.  I therefore do not see any merit in this complaint of the applicant either.

16.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

17.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

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