UDDIN MOHAMMED JASHIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL634/2017

[2018] HKCFI 616

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 634 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 be refused.

Observations for the Applicant:

Procedural history

1.  The Applicant entered Hong Kong illegally on 16 June 2014 and was arrested for being an illegal immigrant.  He was referred to the Immigration Department on 18 June 2014.  He submitted a non-refoulement (“NRF”) claim by way of written representation on 20 June 2014 and was released on recognisance on 11 July 2014.  His NRF claim form was submitted on 7 January 2016.

2.  The Applicant attended a screening interview on 15 March 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 6 May 2016 and by Notice of Further Decision (re BOR 2) on 11 July 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 20 May 2016.  He appeared before the Adjudicator of the TCAB, Sin Ming-hei, on 10 August 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 8 September 2017.

3.  The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 15 September 2017 and did not request an oral hearing.  This matter was therefore dealt with on the papers alone.

Background

4.  The Applicant is a Bangladeshi national born in Govindapur, Feni, Bangladesh.  He has a wife and two daughters.  Between 1997 and 2013 he was involved in used car sales and rental and as a liaison agent for a garment manufacturer.  Both of these were in Dhaka.  He is a member of the Bangladesh Nationalist Party (“BNP”) and his relatives were prominent members of that party.  The Applicant became the Organisational Secretary of Somrik Dal in 2010.  As a result of his membership and the position he held, the Applicant maintains that he received threats from members of the Awami League (“AL”).  Those threats were verbal against him and his family but also physical in that several members of AL would drag him out of his house carrying arms.  This had occurred on 10 to 12 occasions in 2010 to 2011.  This caused mental distress but the Applicant remained a committed member of the BNP.

5.  The Applicant was an activist in the garment industry.  On one occasion, during a strike the Applicant was threatened by members of AL who were carrying guns.  This incident was reported to the police who refused to file a report as it was an allegation against members of the ruling party.  The Applicant then attempted to file a report with the Chief Magistrate in Dhaka and obtained a ruling that the matter should be referred back to the Ashulija police station for investigation with a report to be submitted to the Chief Magistrate.  The police would not file a report because they had not been paid and because it would be against ruling party members.

6.  In March 2012, the Applicant fled to India but quickly returned and went to Rajshahi for two months.  Enquiries were made by members of the AL with his family but no one went to Rajshahi itself.  When he became aware that AL knew of his whereabouts he moved on to Khulna, which is 12 hours away by train.  He moved on again to Sylhet, Kushtiya, Ukhia, Teknap, Coxbazr and Chittagong because he feared being found.  All the while, AL members were visiting his family home in order to locate him.  After seven months, the Applicant returned to Dhaka but not to his home address and arranged for his family to be taken to Govindapur but lived apart from his wife and children by staying with his parents in law.  Unfortunately, in December 2013 he was kidnapped for three days.  This kidnapping was to steal money from the sale of a car and to extort further money from the Applicant’s family.  During the kidnap, the Applicant was assaulted and held bound within a car.  When he was finally released he was unconscious.  On his behalf, the police contacted a member of the Applicant’s family and arranged transportation to Savar from where he was taken by ambulance to hospital and was an in-patient for three to four days.  He required physiotherapy thereafter for four months.  The Applicant did not report this incident to the police because he was in a position to identify six out of the eight kidnappers and his family were worried about reprisals.

Decision and further decision of the Director

7.  The Director analysed the Applicant’s claim on three applicable grounds and subsequently under BOR 2.  He correctly set out the law and key legal principles.  He found that allegations directly involving members of AL did not result in any injury and the incident in which the Applicant was kidnapped had no evidential nexus to AL.  Accordingly, the Applicant did not meet the standard of proof required to found a claim under any of the heads considered.  Even if the Applicant had been able to do so, he found that there was every possibility of relocation within Bangladesh without undue hardship to the Applicant and that there was sound basis for assuming that there would be no assistance from state agencies if it had been requested.

Decision of the Adjudicator

8.  The Adjudicator analysed the Applicant’s claim on all applicable grounds including BOR 2.  He arranged for an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles.  The Adjudicator found the Applicant to be unreliable and his evidence contradictory.  He gave examples of the Applicant’s shifting story.  Nevertheless, he concentrated on the central theme of the Applicant’s claim and to the issue of both active and passive acquiescence of public officials noting that the Applicant had no difficulty obtaining a passport or leaving the country.  He considered carefully the most up‑to‑date COI.

Leave to apply for Judicial Review

9.  Judicial Review is not a rehearing of the merits of the Applicant’s original application for refugee status.  This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator.  The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

10.  In his Affirmation in support of his application for leave, the Applicant submits:

i. There were no reasonable grounds for rejecting his claim.

ii. There was a failure to consider the extended form of state acquiescence.

iii. There was a failure to fully consider the COI reports in assessing risk to the Applicant.

iv. There was an irregularity in that the decision maker was not the person who interviewed the Applicant.

v. There was no proper basis for the consideration of internal relocation.

11.  There were no submissions in support of these specific allegations.  I therefore considered the grounds advanced as they stand.

12.  In respect of (i) above, both the Director and Adjudicator analysed the Applicant’s claim on all applicable grounds having heard the Applicant and provided him with an opportunity to state his case.  In coming to their determination, they took into account admissible documentary evidence and gave him an opportunity to make representation and address their concerns.  There was nothing which was procedurally incorrect.  They explained in detail why they rejected his claim under each and every head.  There was nothing unreasonable in that explanation.

13.  In respect of (ii) above, the Director and Adjudicator considered the purported involvement of the state and its agents based upon the particular facts of this case which involved an allegation against the police and against a private individual said to be a Member of the Legislative Assembly.  They gave reasons for rejecting the Applicant’s claim on this basis and they properly referred to COI materials in respect of that determination giving credit where due to the criticism of the Applicant in respect of the trust reposed in local police forces but noting the improvements which have been and continue to be made in reducing police corruption.

14.  In respect of (iii) above, there is no merit on this ground.  Both the Director and Adjudicator referred to appropriate up‑to‑date COI materials.

15.  In respect of (iv) above, this is factually incorrect.  The Director properly delegates the task of assessing a claim to a senior immigration officer but the person who carries out the interview and makes the determination to be relied upon is one and the same person on behalf of the Director.

16.  In respect of (v) above, there was no evidence whatsoever that the Applicant would come to any harm elsewhere in India.  He is a capable and well‑educated man who should be able to find suitable employment wherever he chose to live.  He had previously lived elsewhere in India without incident.

Conclusion

17.  I have considered the papers, grounds and submissions carefully.  I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  The Director and Adjudicator considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

18.  In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.

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