RANA MOHAMMAD MASUD v. CORRINA TAI, ESQ., TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 231/2018

[2019] HKCFI 78

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 231 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 25-year-old national of Bangladesh who entered Hong Kong illegally on 23 January 2014 and was arrested by police on 23 February 2014.  After he was 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 Village Baghia, District Shariatpur, Bangladesh to a family of supporters of the political party Bangladesh Nationalist Party (“BNP”), and in 2011 he joined its student wing and also became a supporter of BNP.

3.  When rival AL became the ruling party of the government at that time, there were frequent conflicts and clashes between supporters of the two rival parties in which the applicant and his family members were also frequently involved in such clashes in their village and as a result became targets of threats and abuses from AL supporters.

4.  One night in 2010 the applicant was approached by a group of AL supporters, and when he refused to join their party, he was assaulted by them with bamboo sticks that he sustained bruises all over his body.  After receiving medical treatments in a clinic he reported the matter to the police who took down his complaint but failed to follow up with any investigation.

5.  One day in early 2012 after a AL member was murdered, the AL people made a false claim to the police against an uncle of the applicant that he had to go into hiding somewhere in Bangladesh.

6.  Soon more false charges and death threats were made against the applicant’s family that his father, elder brother, uncles and cousins all had to flee and hide in various places in the country, and that in March 2012 the applicant also felt the pressure to flee to Dhaka, and then in 2013 when a false charge had been made against him that after making bail he failed to appear in the next court hearing for fear that he would not be treated fairly and decided it was no longer safe to remain in Bangladesh, he therefore departed on 7 May 2013 for China, and from there he sneaked into Hong Kong in January 2014 and subsequently lodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form (“NCF”) on 13 November 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 28 June 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 the Hong Kong Bill of Rights (“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”).

8.  In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and assessed the risk of harm from the AL supporters to the applicant upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence that the AL supporters had any real intention to kill the applicant other than just to put pressure on him to join their party, that in the absence of 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 168 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 young man to move to other areas of away from his home district in large cities such as Dhaka where he had stayed before without any incidents and where it would be difficult if not impossible for those AL supporters to locate him, whilst any pursuit of him by the police which if true was only part of their investigations and legal process from which the applicant would be a fugitive of the law and not entitled to non-refoulement protection in Hong Kong.

9.  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”).

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, the notice of which he filed on 11 July 2016, and for which he attended an oral hearing on 20 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 8 February 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board upon hearing the applicant in evidence was not convinced that he was in fear of his life being in danger upon his return to Bangladesh, that his account of his political involvements and those of his family members were not credible or reliable, that as AL was in power at that time that there were no reasons for their supporters to force him or his family to join their party, that his assertion of false charges being made against him and his family members were incredible and unsupported by any reliable evidence, and that even if the risk of harm from those AL supporters indeed still persists that both state protection and internal relocation alternatives are available to the applicant in places such as Dhaka where he had stayed before for more than one year without any incidents.

12.  On 13 February 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 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.  

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 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.

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 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 as they had earlier all being already made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him 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.  The fact is that it has been established by both the Director and the Board in their respective 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 other part of Bangladesh, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

17.  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.

18.  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