ISLAM MOHAMMAD TAJOL v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 52/2018

[2018] HKCFI 1983

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 52 of 2018

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 30-year-old national of Bangladesh who entered Hong Kong illegally on 16 June 2014 and was arrested by police on 19 June 2014.  Upon being referred to the Immigration Department for investigation he lodged a non-refoulement claim 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 by the local police over certain false charges against him.  He has since been released on recognizance pending the determination of his claim. 

2.  The applicant was born and raised in Shashi Bhushan, Charshoshivushon, Char Fasson, Bhola, Bangladesh to a wealthy family of supporters of the political party Bangladesh Nationalist Party (“BNP”) and which he also joined as a member in 2008 at the age of 20.

3.  In the same year there was a general election and the applicant and his family participated in the election campaign for BNP in his home village.  However, after the election was won by AL which became the ruling party, its local supporters started to harass the BNP’s supporters including the applicant and his family with threats to kill him if he did not quit BNP to join their party.

4.  One evening in November 2013 when the applicant was on his way home he was attacked by several AL supporters with knives and sticks until he was rescued by other villagers and was sent to the hospital for medical treatments, but the subsequent report of the assault to the police was to no avail as the applicant suspected that they were under the influential of AL and were unwilling to investigate.

5.  However, one night in February 2014 the applicant was arrested by the police on a false charge for arson and vandalism made against him by some AL supporters, and was later remanded by the Magistrate Court in Bhola in jail for 29 days during which he was interrogated by some officers until he was put on bail by his lawyer and was released.

6.  Upon release the applicant was advised by his mother that it was no longer safe for him to remain in Bangladesh, and he therefore fled to Dhaka where he was later arranged to depart on 5 June 2014 for China, and from there he sneaked into Hong Kong and subsequently lodged his non-refoulement claim, for which he completed a Non-Refoulement Claim Form (“NCF”) and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 19 May 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”).

8.  In his decision the Director doubted the applicant’s asserted events in Bangladesh in his claim especially his involvement in BNP’s election campaign as inconsistent and unconvincing, that upon taking into account of all the relevant circumstances of his claim that the risk of harm to him upon his return to Bangladesh was assessed as low, that there is no evidence why state protection would not be available to him if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh that it would not be unduly harsh for the applicant as an able-bodied young man to move to other areas away from his home district such as Dhaka where he had stayed without any incidents prior to his departure.     

9.  By a Notice of Further Decision dated 28 July 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation for him to submit additional facts 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”).

10.  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 30 May 2016, and for which he attended an oral hearing on 31 October 2017 before the Board during which he confirmed all his evidence in the hearing bundle.  On 5 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board found discrepancies in the applicant’s claim which undermined the reliability of his various allegations and casted doubt on his credibility, that there is no reliable evidence that he did ever join BNP as a member, that even if he were indeed a BNP member at the material times that he was merely at grass-root level in the party and hence unlikely to give rise to any well-founded fear of persecution by AL supporters, that there was no reliable evidence of any official involvement in any of the threats against him that there is no reason why state protection would not be available to him if resorted to, and concluded that he has failed to establish his claim under any of the applicable grounds. 

12.  On 10 January 2018 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)  lack of legal representation in his appeal before the Board;

(2)  lack of language assistance for not providing him with any translation of his NCF to enable him to find out if the interpreter had translated the basis of his claim properly;

(3)  lack of fair hearing on the part of the Director in failing to provide him a further screening interview for his claim under BOR 2 risk before making his further decision to reject his claim; and

(4)  wrongful exercise of case management power on the part of both the Director and the adjudicator for putting little or no weight on his claim of being remanded in Bhola jail for 29 days during which he was interrogated by officers or in his supporting documents and hence there is no proper basis for finding his claim as unreliable.  

13.  For his complaint in ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

14.  The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

15.  As for his complaint under ground (2) of not being provided with a translation of his NCF, it is clear that his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board.  In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the applicant simply speculative and without merit.

16.  Regarding his complaint under ground (3) of not being provided a further screening interview for his claim under BOR 2 risk, even assuming that he either did not indeed receive the earlier letter from the Immigration Department inviting him to submit additional facts relevant to his claim under BOR 2 risk, or that he was indeed for whatever reason unable to do so within the time stipulated, he did not raise any issue with it at his subsequent oral hearing more than three months later before the Board nor request for further time or assistance to submit any such additional facts that he might have available regarding BOR 2 risk.  In fact even now in this leave application including an oral hearing before me that he did not submit any additional facts or make any further representation relevant to his claim under BOR 2 risk.  In the absence of any further response from the applicant, the Director was entitled to assess his claim relevant to BOR 2 risk on his presentation and evidence available and I do not find anything amiss in no further screening interview being provided to the applicant in the circumstances.

17.  As for his complaint in ground (4) against the Director and the adjudicator of not putting any or sufficient weight in his claim of being remanded in Bhola jail for 29 days during which he was interrogated, in fact both the Director in paragraphs 20 – 21 of his decision and the adjudicator in paragraphs 64 – 74 of his decision did properly consider and assess such claim of the applicant on all the evidence available to them, of which they as primary decision makers were entitled to evaluate before making their findings and conclusion in their respective decision, and I do not find any merit or basis in this complaint of the applicant.     

18.  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.

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