SAYAD AHMED v. GERARD PAUL MUTTRIE, ESQ., AND ANOTHER

HCAL 88/2018

[2018] HKCFI 2099

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 88 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 39-year-old national of Bangladesh who entered Hong Kong illegally on 22 January 2014 and was arrested by police on the same day.  After 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 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 West Medda, Brahmanbaria, Bangladesh.  After leaving school he worked as a tailor, got married with two daughters, and joined the political party Jamaat-e-Islami (“JeI”) regularly attending their meetings and rallies.

3.  In 2005 he was appointed a committee member of JeI in his home district and soon became a target of opposition parties especially AL which had won the election in 2008 and became the ruling party, when some of its members and supporters started to press him to quit JeI to join AL but he would always refuse their demands.

4.  One day in 2008 on his way home the applicant was confronted by some AL supporters demanding him to quit his party, and when he refused he was stabbed in his stomach and was warned that if he still did not listen to them he would be killed.

5.  After receiving medical treatment the applicant did not report the matter to the police as AL was the ruling party, and instead he packed his belongings and fled to Dhaka where he stayed for about six months before flying off to Bahrain.

6.  In 2012 he returned to Bangladesh but did not stay in one place and instead moved around to various places such as Taltola, Sohagpur, Ashuganj and Chittagong until 2013 when he again left for Bahrain.

7.  In late 2013 when he felt that he was no longer under any threat he returned to Bangladesh to assist JeI for the 2014 general election.  However, one night after holding a meeting with other party members his office was burnt down after someone had set fire to it, and on the following morning some AL members came to see the applicant and told him that it was they who burnt down his office and threatened that next time they would kill him if he continued to work for JeI.

8.  After they left the applicant felt it was not safe to remain in Bangladesh and so on 16 January 2014 he departed for China, and from there he subsequently sneaked into Hong Kong and raised his non-refoulement claim, for which he later completed a Non-refoulement Claim Form (“NCF”) on 2 December 2015 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

9.  By a Notice of Decision dated 11 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”).

10.  In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm upon his return to Bangladesh as low as it was not accepted that the AL people had any real intention to harm or kill him and that the ill-treatment whether physical or mental inflicted by them in the past did not attain a minimum level of severity, that in the absence of any evidence of official involvement that state protection would be available to the applicant if resorted to, and thatreliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 169 million people spread across a vast territory of more than 130,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other area away from his home district such as Dhaka or Chittagong where he had stayed before without incidents prior to his departure and where it would be difficult if not impossible for those AL people to locate him.

11.  By a Notice of Further Decision dated 13 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”).

12.  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, and for which he attended an oral hearing on 8 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 12 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

13.  In its decision the Board found certain internal inconsistencies in the applicant’s evidence but gave him the benefit of doubt and accepted his assertion as a local committee member of JeI at some risks from the local AL members, but found such risks clearly localized which he can avoid by relocating within Bangladesh to many places away from his home district where those AL people would not have the power or resources to trace or locate him, and that it would not be unreasonable or too harsh for him as an able-bodied man with experience of running his own tailoring business to do so.

14.  On 18 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, 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 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 himself 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 his 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.  

15.  These are however 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.

16.  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.

17.  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 NCF, record of his screening interview and the Director’s decisions should be well familiar to the applicant as they had earlier already been 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 better prepare for his appeal at his oral hearing to the adjudicator. Accordingly I do not find anything amiss arising from the hearing bundle for the applicant in his appeal before the Board.

18.  The fact is that it has been established by both the Director and the Board in their decisions 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 another part of Bangladesh, there is simply no justification to afford him non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19.  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.

20.  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