KASHEM ABUL v. TORTURE CLAIMS APPEAL BOARD

HCAL 937/2017

[2018] HKCFI 1371

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 937 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 in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 38-year-old national of Bangladesh who entered Hong Kong illegally on 16 February 2016 and was arrested by the police on the same day.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 27 February 2016 on the basis that if he returned to Bangladesh he would be harmed or killed by the supporters of rival political party Awami League (“AL”).  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Nitira Village, Munshiganj, Bangladesh where he received no formal education and worked in the farm when he was small.  In 2001 he moved to live in Narayanganj where he opened a shop selling plastic goods.

3.  In 2014 he became an ordinary member of the political party Bangladesh Nationalist Party (“BNP”) attending rallies against their main rival party AL which led to many clashes during the 2014 National Election, with the first one in which the applicant was involved took place in Chashara, Narayanganj during a rally of BNP when their supporters were attacked by the AL supporters but the applicant managed to escape unhurt.   

4.  Several months later one night in early 2015 several AL people came to the applicant’s shop to demand money from him, and when the applicant refused they started punching and kicking him but he managed to flee from the scene and sought medical treatment at the hospital.  He did not report the matter to the police because he did not think they would help as AL was then the ruling party,

5.  A few weeks thereafter the applicant started to receive threatening phone calls from the AL people telling him to get out of Bangladesh or else they would beat him up again.  Fearing for his life the applicant therefore left Bangladesh on 5 February 2016 for China, and from there he sneaked into Hong Kong on 16 February 2016 where he subsequently lodged his non-refoulement claim, for which he completed his Non-refoulement Claim Form (“NCF”) on 29 June 2016 with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 11 August 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 no real risk of him being harmed by the AL people upon his return to Bangladesh, that the threats from the AL people were to extort money from him and hence state and police 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 168 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with working experience to move to areas away from his home district such as Dhaka or Chittagong where he can safely live and work free of any threats from those AL people.

8.  By a Notice of Further Decision dated 5 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”).

9.  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, for which he filed his appeal on 19 August 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.  On 2 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found on the facts of the applicant’s case that any risk that the AL people from Narayanganj would pursue him to a city such as Dhaka, Chittagong or Khulna to be extremely low given his low level of involvement in the BNP and the lack of serious harm in the past, and that there is no reason to believe that the applicant as a young man who has previously run his own business would not be able to again obtain employment and sustain his living in one of those cities upon his return to Bangladesh.

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 ground for his intended challenge:

(1)  procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(2)  irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(3)  irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(4)  irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected herself as to the extended meaning of state protection;

(5)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

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

(8)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.  

12.  These are all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

13.  The adjudicator in accepting the applicant’s account of the threats from the AL people in Narayanganj was in my judgment perfectly entitled to find on the facts and evidence before her that both state protection and reasonable internal relocation alternatives are available to the applicant for his safe return to Bangladesh and hence he was not entitled to non-refoulement protection, and I do not find any basis or merits in any of those grounds of the applicant.

14.  The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given insufficient time to prepare for his appeal.

15.  Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicant and were made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that he never raised any issue or requested for further time to enable him to properly prepare for his appeal at his oral hearing to the adjudicator.  Accordingly I do not find anything amiss arising from the hearing bundle being given to the applicant shortly before his appeal before the Board.     

16.  In the premises and having proceeded to consider 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