MD MOJAMMAL ALIAS MD MOJMMAL ALIAS MOJAMMAL v. MRS SYDELLE MULING, ESQ., TORTURE CLAIMS APPEAL BOARD

HCAL 1279/2018

[2020] HKCFI 542

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1279 of 2018

     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 40-year-old national of Bangladesh who arrived in Hong Kong on 28 May 2006 with permission to remain as a visitor up to 11 June 2006 when he did not depart and instead overstayed and was arrested by police on 18 November 2009.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by a fellow villager over a land dispute, and after his torture claim was rejected, he then raised a claim for non-refoulement protection on the same basis.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Akankandi Village, Nasason Union, Naria,Shariatpur District, Bangladesh.  He did not receive any formal education, but ran an eatery in his home village, and lived with his parents and siblings in the family home on a piece of land inherited from his grandfather.

3.  However, one of their neighbours Tofique, an influential person in the village with political connections, disputed that their land actually belonged to his father, and frequentlydemanded the Applicant’s family to return the land to him which had led to constant conflicts between the two parties.

4.  One day in 2000 Tofique came with his men to the Applicant’s home with the same demand over the land, and deteriorated to a heated quarrel with the Applicant’s family,followed by a vicious fight during which the Applicant and his family were outnumbered and were beaten with wooden sticks, whilst other members including the Applicant’s mother were shot, and the Applicant was stabbed in his thigh, with all the wounded ones including the Applicant subsequently taken to the hospital for treatments.

5.  Upon his discharge from the hospital, as the Applicant was fearful for his life, he therefore fled to Dhaka where he stayed for the next six years without further incidents,during which he was told that his father had filed a case with the police against Tofique in respect of the attack, and as a result Tofique had been putting pressure on the Applicant’s family to withdraw the case, but when his father refused, Tofique would continue to make threats against his family, including one particular occasion when Tofique and his men broke into his family’s house and took away valuable items and livestock.

6.  On another occasion in 2004 when the Applicant returned to his home village to visit his family, he was assaulted by two unknown men with wooden sticks but he managed to escape from the scene, and later reported the attack to the police, but no follow up action appeared to have been taken by the police.

7.  However, in 2006 when the Applicant heard that Tofique had made false charges against him, the Applicant felt it was no longer safe to remain in Bangladesh, and so on 28 May 2006 he departed for Hong Kong where he overstayed and raised his torture claim, and after it was rejected by the Immigration Department, he raised his claim for non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 26 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 17 October 2017 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 his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“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”).

9.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Tofique or his men upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any false charges against the Applicant who was able to leave Bangladesh without any problem, that his problem with Tofique was a private personal dispute over land without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 157 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 work experience to move to other part of Bangladesh away from his home district in large cities such as Dhaka where it would be difficult if not impossible for Tofique or his men to locate him.

10.  On 30 October 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 26 February 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 22 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found serious discrepancies and inconsistencies in the Applicant’s account of his family’s land dispute with Tofique and the various assault incidents that it did not find him to be a credible witness, nor did it accept that he had experienced any problems or harm in Bangladesh because of any land dispute or involvement in any case that he would face harm upon his return to Bangladesh, and concluded that his claim for non-refoulement protection failed on all applicable grounds.

12.  On 4 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1) misdirection in law in that the adjudicator misdirected on the law by taking into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;  

(2) 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;

(3) 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;

(4) 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;

(5) 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;

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

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

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

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

13.  These are however all just 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 how did the adjudicator misdirected in law in finding that the Applicant had not been tortured, or in what way did the adjudicator fail to take into accountrelevant 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 assertionswere elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

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 him 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 theApplicant 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 SCF, records of his screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation,whilst his SCF was completed on his own instructions with legal assistance, and that at hisoral hearing he never raised any issue or requested the adjudicator for further time to enablehim to better prepare for his appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board.

16.  Furthermore, the Applicant’s claim was rejected by the Board essentially on its adverse finding on his credibility for the thorough analysis and reasoning set out in paragraphs 41 – 55 of its decision with the benefit of hearing him in oral evidence and in answers to questions raised of his claim during his appeal hearing, and in the absence of any error or law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant with sufficient particularity, I do not find any reasonably arguable basis for him to challenge the findings of the Director or the Board.

17.  The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, a decision also confirmed by the Board,there is simply no justification to afford him with non-refoulement protection in Hong Kong:see TK v Jenkins & anor [2013] 1 HKC 526.

18.  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.

19.  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