ISLAM SAIFUL ALIAS RANA v. TORTURE CLAIMS APPEAL BOARD

HCAL 942/2017

[2018] HKCFI 1379

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 942 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:

1.  The applicant is a 49-year-old national of Bangladesh who entered Hong Kong illegally from Shenzhen on 21 December 2015 when he was arrested by the police on the same day.  After he was referred to the Immigration Department for investigation, he lodged his non-refoulement claim on 19 January 2016 on the basis that if he returned to Bangladesh he would be harmed or killed by a terrorist group known as Jamaat-ul-Mujahideen (“JMB”) for refusing to join them.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Nougaon, Bangladesh.  After leaving school he worked in various jobs before starting his own garment business in Dhaka in 2000 during which he also got married and has four children.  In 1992 he joined the BangladeshNationalist Party (“BNP”) as an ordinary member attending occasionally the party’s events.

3.  In about 2013 he was approached by some JMB members asking him to join them in their terrorist attacks of government buildings and vehicles, and when he refused they insisted that he should think about it seriously and left.  Afterwards he would receive threatening calls from the JMB members almost every day pressing him to join them, andwhen he reported the matter to the police, they however declined to provide any assistance without any explanation.

4.  In January 2014 the JMB men came to the applicant’s home and threatened to take revenge against him for reporting the matter to the police.  One night thereafter someone set fire to his shop and his house and that one of his daughters died in the fire, and the applicant and the rest of his family had to take shelter at his in-laws’ home in Dhaka. The applicant suspected that it was the JMB men who set the fire but he did not make any report to the police out of fear of further revenge from the terrorists.

5.  For the next two years while his family stayed with his in-laws in Dhaka, the applicant would move to various places in Bangladesh where he would stay for 5 – 6 months in each place to avoid the JMB men, but he would still receive threatening calls from them, and when he was unable to contact his wife and his family in Dhaka since November 2014, he started to fear the JMB men would eventually be able to locate him, and so on 1 December 2015 he departed Bangladesh for China and from there he sneakedinto Hong Kong on 21 December 2015 when he was arrested and subsequently lodged his non-refoulement claim, for which he later completed his Non-refoulement Claim Form (“NCF”) with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 24 June 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the 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”).

7.  In his decision the Director found on the facts of the applicant’s case that it is not accepted that his claimed fear of being harmed or killed by the JMB members is present, real or imminent, that objective Country of Origin Information (“COI”) show that the Bangladesh authorities have taken military actions against terrorist groups such as the JMB and hence state protection from these terrorists would be available to the applicant upon his return to Bangladesh if resorted to, and that reasonable internal relocation alternatives are also available in Bangladesh with a large population of 168 million people spread across a vast territory of more than 130,000 square kilometers that it would not be unduly harsh for the applicant to move to live and work such as in Barisal or Rangpur without fear of any risk of harm from the JMB people.   

8.  By a Notice of Further Decision dated 4 May 2017 the Director again rejected theapplicant’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”).

9.  By then the applicant was already in the process of appealing to the Torture ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, for which he filedhis appeal on 30 June 2016, and attended an oral hearing on 16 June 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator.  On 26 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found the applicant’s claim based only on his bare assertions without any objective proof to support them, that although he and his family may have been threatened by the JMB, there was no evidence that such actions caused him to suffer physically or mentally to the necessary level of severity required for non-refoulement protection, or that the Bangladesh government would not be willing to provide him with protection against those terrorists, and that Bangladesh is such a large country with a big population that it would be highly unlikely that the JMB would even be bother looking for him, and that even if they did whether they would have the means or ability to do so.     

11.  On 23 November 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 put forward the following grounds for his intended challenge:

(1)  procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI in the consideration of his claim; 

(2)  irrationality in the adjudicator’s failure to put proper weight in relevant COI and to rely on or give too much weight in irrelevant COI or on source of news not officially recognized or were simply hearsay or outdated in the consideration of his claim;

(3)  irrationality in the adjudicator’s failure to make proper finding as to whether gross or mass violation of human rights exist in Bangladesh;

(4)  irrationality in the adjudicator’s failure to assess whether state protection exist in Bangladesh in the consideration of his claim;

(5)  irrationality in the Board for taking into account or putting weight on irrelevant considerations of his claim;

(6)  procedural impropriety in failing to call for psychological or psychiatric evaluations or reports on him;

(7)  procedural impropriety/unfairness in applying the incorrect standard of proof in the decision; and

(8)  procedural impropriety/unfairness in lack of and/or insufficient legal representation from his assigned duty lawyer that he was not afforded a fair procedure.  

12.  These are all just broad and vague assertions of the applicant without providing any particulars or specifics or elaborations as to how they applied to his case or how the Board erred in its decision, or in what way the Board had considered irrelevant COI or which COI were hearsay or outdated as asserted, or why it was relevant to call for psychological or psychiatric evaluations on him, or how insufficient legal representation that he might have received from his assigned lawyer.

13.  Furthermore, it is clear from the applicant’s own case and from reliable and undisputed COI that JMB is a terrorist group banned by the Bangladesh government and that proper actions have been taken against that group, it was therefore perfectly entitled for the Board to find that state protection would be available to the applicant, and with objective COI showing the availability of reasonable internal relocation alternatives and that it would not be unduly harsh for the applicant as an able-bodied adult with ample working experience to move safely to other areas of Bangladesh, the Board was in my judgment entitled to find no justification for affording non-refoulement protection to the applicant in the circumstances of his case: see TK v Jenkins & Anor [2013] 1 HKC 526.    

14.  As for the applicant’s complaints in his affirmation of being given the hearing bundle just a few days before his appeal hearing with most of the documents in English and hence there was insufficient time for him to prepare for the appeal, there can be no dispute that he should be well familiar to most of the documents in the bundle such as his own NCF, records of his screening interviews and the decisions of the Director which had earlier all been made available to him when he still had legal representation, and that he never raised any issue of not having sufficient time for his preparation for his appeal at the oral hearing before the Board nor did he make any request for adjournment or more time for preparation during the hearing.  In the circumstances I do not find any merit in this complaint of the applicant.

15.  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.

16.  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