MIZAN SIKDER v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 48/2018

[2018] HKCFI 1593

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 48 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 31-year-old national of Bangladesh who arrived in Hong Kong on 2 November 2013 with permission to remain as a visitor up to 9 November 2013 when he did not depart but instead overstayed until 12 November 2013 when he surrendered to the Immigration Department and subsequently lodged a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by members and 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 South Charaikandi Village, Ramjanpur, Kalkini, Madaripur, Bangladesh to a family of supporters of the Jamaat-e-Islami Party (“JeI”).  After leaving school he worked as a salesman and also joined JeI as a member and later became the secretary of its youth wing.

3.  In 2008 when AL became the ruling party, some of the leaders of JeI were arrested with its members being oppressed by supporters of AL.  One day in January 2009 when the applicant and his father saw some AL members approaching their house with guns and machetes, they fled through the back door and hid in the fields, and two days later when the applicant was on his way to meet with some of his party members, he was assaulted by some AL members with bamboo poles that he fainted until he was revived by the village doctor who also treated his injuries.

4.  After the incident the applicant took shelter at his aunt’s place in Bijapur Village in Barisal for a month before returning home in February 2009.  However, a few days later he was arrested by the police on a false charge laid by the AL people and was detained in the police station until being bailed out by his father.  The applicant then fled to Dhaka where he stayed for half a year without any incidents, but when he heard from his parents that the AL people were still looking for him, he moved from city to city including Chittagong, Sylhet and then to Kolkata in India until September 2012 when he returned Bangladesh, but when the AL supporters started to attack JeI members in his home village in 2013, the applicant again felt it was not safe for him to remain in Bangladesh and on 1 November 2013 he departed for Hong Kong where he subsequently lodged his non-refoulement claim, for which he completed his Non-refoulement Claim Form (“NCF”) on 28 July 2015 with legal representation from the Duty Lawyer Service.     

5.  By a Notice of Decision dated 5 February 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”).

6.  In his decision the Director found the low intensity and frequency of past ill-treatment from the AL people indicative of a low risk of harm upon the applicant’s return to Bangladesh, that state protection would be available to him if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 166 million people spread across a vast territory of more than 143,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man to move safely to other areas away from his home district such as Barisal or Dhaka where he had stayed before without any incidents. 

7.  By a Notice of Further Decision dated 31 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 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”).

8.  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 19 February 2016, and for which he attended an oral hearing on 12 September 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 5 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board found the applicant’s evidence wholly unreliable with glaring contradictions between what he stated in his NCF, his interviews and at the hearing for the reasons and analysis detailed in paragraphs 71 – 83, and that he was patently dishonest about the circumstances of his alleged detention at the police station in February 2009 and the circumstances which led up to his coming to Hong Kong, and concluded that his claim for non-refoulement protection fails on all applicable grounds.    

10.  On 9 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in it he put forward the following grounds for his intended challenge:

(1)  that the Board had unlawfully fettered its discretion by refusing his appeal on the ground that they did not satisfy the requirement;

(2)  that the adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(3)  that the Board’s decisions to refuse his appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness; and

(4)  that the Board failed to meet the greater care and duty to a self-represented claimant.   

11.  These are however all just broad and vague assertions of the applicant without providing any particulars or specifics or elaborations as to how they applied to his case, or in what way that the Board had fettered its discretion or acted procedurally unfair or that its decision was unreasonable or irrational in the public law sense.  There is simply no elaboration or explanation from the applicant in any of these complaints of his.

12.  As for the only other complaint which the applicant did elaborate is about the hearing bundle being provided to him by the Director with the majority of documents in English just seven days before his appeal hearing before the Board hence giving him insufficient time to prepare or to find an interpreter to assist him and hence it is procedurally unfair to dismiss his appeal.

13.  If it is indeed true that the hearing bundle was provided to him late for his appeal, and I note that he did not produce the letter from the Director which accompanied the bundle as proof, he should be well familiar with most of the documents such as his NCF, record of his screening interviews, and the Director’s decisions which had earlier already been provided to him when he still had legal representation, while he was able to present his appeal assisted by an interpreter to the Board without any difficulty during which he never raised any issue over the late provision of the hearing bundle or made any request for further time to prepare for his appeal.  In the circumstances I do not find anything amiss arising from any provision of the hearing bundle to him in his appeal before the Board.

14.  The fact is that the applicant’s claim was rejected by the Board essentially on his credibility, and as it is a well-established principle that the evaluation of evidence is essentially a matter of the Director and the Adjudicator who are entitled to make such evaluations based on the facts and evidence available to them which the court will not usurp their role as primary decision-makers, I am unable to see any basis or merits for interfering with the Board’s decision.     

15.  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.

16.  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